SEAN HIRT PLAINTIFF APPELLANT v. PAUL MANCUSO DEFENDANT RESPONDENT ET AL DEFENDANTS (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he sustained when he was allegedly assaulted by defendants Michael Durso and Joseph Mazza at the direction of defendant Paul Mancuso.   Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint.   Defendants met their initial burden by establishing that the action, commenced more than one year after the alleged assault, is time-barred (see CPLR 215[3] ), and plaintiff failed to raise a triable issue of fact whether the limitations period was extended by virtue of CPLR 215(8)(a), based on the commencement of a federal criminal action against Mancuso.   The record establishes that the criminal action against Mancuso was not “commenced with respect to the event or occurrence from which [plaintiff's] claim ․ arises” (id.;   see generally Christodoulou v Terdeman, 262 A.D.2d 595, 596).   In any event, two of the three defendants, i.e., Durso and Mazza, are not “the same defendant” against whom the criminal action was commenced (CPLR 215[8][a];  see Villanueva v. Comparetto, 180 A.D.2d 627, 629;  see also Jordan v. Britton, 128 A.D.2d 315, 320).

Patricia L. Morgan

Clerk of the Court