Opinion
2022-03192 Index No. 523338/20
08-30-2023
Vanessa WILLIAMS, appellant, v. IDEAL FOOD BASKET, LLC, defendant, Feil–BLS, LLC, et al., respondents.
Mills & Edwards, LLP, New York, NY (Lennon Edwards and Rosamaria DeFranscisco of counsel), for appellant. Ropers Majeski, P.C., New York, NY (John W. Hanson of counsel), for respondents.
Mills & Edwards, LLP, New York, NY (Lennon Edwards and Rosamaria DeFranscisco of counsel), for appellant.
Ropers Majeski, P.C., New York, NY (John W. Hanson of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, HELEN VOUTSINAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 8, 2022. The order granted the motion of the defendants Feil–BLS, LLC, and Broadwall Management Corp. pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Feil–BLS, LLC, and Broadwall Management Corp. pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred is denied.
On November 23, 2020, the plaintiff filed a summons and complaint naming only Ideal Food Basket, LLC (hereinafter Ideal), as a defendant. On March 4, 2021, the plaintiff filed an amended complaint, among other things, naming Feil–BLS, LLC (hereinafter Feil–BLS), and Broadwall Management Corp. (hereinafter Broadwall) as defendants in addition to Ideal. The plaintiff alleged that she sustained personal injuries on January 10, 2018, due to the defendants' negligence. Feil–BLS and Broadwall moved pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred, contending that the action was not timely commenced against them within the applicable three-year statute of limitations. By order dated March 8, 2022, the Supreme Court granted the motion of Feil–BLS and Broadwall to dismiss the amended complaint insofar as asserted against them as time-barred. The plaintiff appeals.
On appeal, the plaintiff has abandoned the arguments she originally made in opposition to the motion. She contends instead that Executive Order (A.Cuomo) Nos. 202.8 and 202.67 (9 NYCRR 8.202.8, 8.202.67), enacted by then-Governor Andrew Cuomo (hereinafter the executive orders) in response to the COVID–19 pandemic, acted to toll the applicable statute of limitations from March 20, 2020, until November 3, 2020, and therefore, this action was timely commenced against Feil–BLS and Broadwall. Although this argument is raised for the first time on appeal, we reach the argument because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see MTGLQ Invs., L.P. v. Baksh, 215 A.D.3d 666, 668, 187 N.Y.S.3d 258 ; Matter of New York City Tr. Auth. v. American Tr. Ins. Co., 211 A.D.3d 643, 643, 181 N.Y.S.3d 218 ; Deutsche Bank Natl. Trust Co. v. Lubonty, 208 A.D.3d 142, 145, 171 N.Y.S.3d 556 ; Federal Natl. Mtge. Assn. v. Walter, 199 A.D.3d 889, 890, 154 N.Y.S.3d 450 ; Franklin v. Hafftka, 140 A.D.3d 922, 924, 35 N.Y.S.3d 142 ; Loiacono v. Goldberg, 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 ).
Pursuant to CPLR 214(5), an action to recover damages for personal injuries is subject to a three-year statute of limitations. In Brash v. Richards , this Court held that the executive orders "constitute a toll" of the filing deadlines applicable to litigation in New York courts ( Brash v. Richards, 195 A.D.3d 582, 582, 149 N.Y.S.3d 560 ; see McLaughlin v. Snowlift, Inc., 214 A.D.3d 720, 721, 185 N.Y.S.3d 212 ; Murphy v. Harris, 210 A.D.3d 410, 411, 177 N.Y.S.3d 559 ; Matter of Roach v. Cornell Univ., 207 A.D.3d 931, 933, 172 N.Y.S.3d 215 ). Contrary to the contention of Feil–BLS and Broadwall, this toll of the statute of limitations did not only apply to statutes of limitations that expired between March 20, 2020, and November 3, 2020 (see McLaughlin v. Snowlift, Inc., 214 A.D.3d at 721, 185 N.Y.S.3d 212 ).
Accordingly, in this case, due to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to commence this action was tolled between March 20, 2020, and November 3, 2020 (see id. ; Murphy v. Harris, 210 A.D.3d at 411, 177 N.Y.S.3d 559 ; Matter of Roach v. Cornell Univ., 207 A.D.3d at 933, 172 N.Y.S.3d 215 ; Brash v. Richards, 195 A.D.3d at 582, 149 N.Y.S.3d 560 ). Thus, this action, which was commenced against Feil–BLS and Broadwall on March 4, 2021, was commenced against those defendants well within the statute of limitations. Accordingly, the Supreme Court should have denied the motion of Feil–BLS and Broadwall to dismiss the amended complaint insofar as asserted against them as time-barred.
CONNOLLY, J.P., GENOVESI, VOUTSINAS and WAN, JJ., concur.