LESSOFF v. 26 COURT STREET ASSOCIATES LLC (2009)

In an action to recover damages for personal injuries, the defendant 26 Court Street Associates, LLC, appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), dated March 22, 2007, as denied that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred, and (2) an order of the same court (Marano, J.), dated December 5, 2007.

ORDERED that the appeal from the order dated December 5, 2007, is dismissed as abandoned;  and it is further,

ORDERED that the order dated March 22, 2007, is reversed insofar as appealed from, on the law, and that branch of the motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the appellant as time-barred is granted;  and it is further,

ORDERED that one bill of costs is awarded to the appellant.

On August 22, 2003, the plaintiff mailed a letter to the appellant claiming that he had been injured as the result of a slip and fall in the appellant's building.   On October 10, 2006, the plaintiff commenced this action by filing a summons and complaint.   The complaint, which was not properly verified, alleged that the same accident occurred on October 11, 2003 (see CPLR 3020, 3021). The appellant moved, inter alia, to dismiss the action as time-barred, contending that the accident occurred on or prior to August 22, 2003, and that the action, which was commenced more than three years after the underlying accident, was untimely.   The Supreme Court denied that branch of the motion.

 In support of that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred, the appellant established through documentary evidence that the plaintiff's action accrued on or before August 22, 2003.   Since the action was commenced after the expiration of the three-year statute of limitations by the filing of a summons and complaint on October 10, 2006, the appellant sustained the initial burden of proving that the action was untimely (see CPLR 214[5];  Etienne v. H. Schrier & Co., Inc., 53 A.D.3d 470, 859 N.Y.S.2d 571;   Levinsky v. Mugermin, 52 A.D.3d 477, 857 N.Y.S.2d 915;  Marino v. Proch, 258 A.D.2d 628, 685 N.Y.S.2d 761).   Thereafter, the burden was upon the plaintiff to aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely (see Gravel v. Cicola, 297 A.D.2d 620, 621, 747 N.Y.S.2d 33;  Assad v. City of New York, 238 A.D.2d 456, 457, 656 N.Y.S.2d 669).

 In opposition, the plaintiff, who is an attorney, submitted his own affirmation and the medical report of his physician.   It was improper for the plaintiff to submit his own affirmation rather than an affidavit, since he was a party to the action (see CPLR 2106;  Muniz v. Katlowitz, 49 A.D.3d 511, 513, 856 N.Y.S.2d 120;  DeLeonardis v. Brown, 15 A.D.3d 525, 526, 790 N.Y.S.2d 686;  Matter of Sassower v. Greenspan, Kanarek, Jaffe & Funk, 121 A.D.2d 549, 504 N.Y.S.2d 31).   Furthermore, the purported date of the accident contained in the physician's report constituted inadmissible hearsay, since the source of that information was unknown and may have been part of the history relayed by the plaintiff (see Albrecht v. Area Bus Corp., 249 A.D.2d 253, 255, 670 N.Y.S.2d 873;  Ginsberg v. North Shore Hosp., 213 A.D.2d 592, 624 N.Y.S.2d 257;  Echeverria v. City of New York, 166 A.D.2d 409, 410, 560 N.Y.S.2d 473).   Moreover, the affidavit of the office manager of the plaintiff's law firm was improperly submitted in surreply (see CPLR 2214;  Boockvor v. Fischer, 56 A.D.3d 405, 866 N.Y.S.2d 767;  Flores v. Stankiewicz, 35 A.D.3d 804, 805, 827 N.Y.S.2d 281;  Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d 416, 417, 766 N.Y.S.2d 897).   In any event, that affidavit was of no probative value.   Since the plaintiff failed to produce any evidentiary facts with respect to the date of the accident, that branch of the motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the appellant as time-barred should have been granted.