LEWIS v. WORZMAN (2005)

Supreme Court, Appellate Division, First Department, New York.

Michael LEWIS, Plaintiff-Appellant, v. Peter WORZMAN, Defendant-Respondent.

Decided: October 25, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, MALONE, JJ.

Shearer & Essner, LLP, New York (David M. Shearer of counsel), for appellant. Rimland & Associates, Brooklyn (Anthony M. Grisanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered June 30, 2004, which granted defendant's motion for summary judgment dismissing the complaint as time-barred, unanimously affirmed, without costs.

The action was properly dismissed upon the ground that the three-year statute of limitations (CPLR 214[5] ) governing plaintiff's claim for negligent impairment of the right to sue based on his employer's destruction of the ladder from which he fell (see Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636, 637, 721 N.Y.S.2d 662 [2001] ) began to run in 1991, when plaintiff learned that his employer had destroyed the ladder, not in 2002, when plaintiff's products liability action was dismissed for lack of evidence as to the ladder's retailer or manufacturer. As the motion court held, it was the destruction of the ladder that impaired plaintiff's ability to identify the ladder's retailer or manufacturer.

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