IN RE: Charlene Nederlander (2026)

DECISION & ORDER

In a probate proceeding in which James Couri petitioned, in effect, pursuant to SCPA 1809 to determine the validity of a claim against the estate of Charlene Nederlander, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (Theresa Whelan, S.), dated September 18, 2020.  The order, insofar as appealed from, granted that branch of the motion of the estate of Charlene Nederlander which was pursuant to CPLR 3211(a) to dismiss the petition.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In October 1985, Charlene Nederlander (hereinafter the decedent) allegedly entered into an agreement with the petitioner, in which she acknowledged that she was indebted to him for a sum certain.  In 2019, following the death of the decedent, whose will was admitted to probate, the petitioner filed a petition to recover the amount owed with interest from the decedent's estate.  The decedent's estate moved, inter alia, pursuant to CPLR 3211(a) to dismiss the petition.  In an order dated September 18, 2020, the Surrogate's Court, among other things, granted that branch of the motion.  The petitioner appeals.

“In moving to dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a moving [party] must establish, prima facie, that the time within which to commence the action has expired” (Franklin v Hafftka, 140 AD3d 922, 924;  see Statharos v Statharos, 219 AD3d 651, 652).  “The burden then shifts to the [nonmoving party] to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period” (Franklin v Hafftka, 140 AD3d at 924;  see Statharos v Statharos, 219 AD3d at 652).

Here, the decedent's estate satisfied its initial burden by demonstrating that the cause of action alleging a breach of the alleged agreement was time-barred.  In opposition, the petitioner failed to raise a question of fact as to whether the statute of limitations was inapplicable.  Contrary to the petitioner's contention, the provision contained in the alleged agreement purportedly waiving the statute of limitations was unenforceable (see John J. Kassner & Co. v City of New York, 46 NY2d 544, 551).

The parties' remaining contentions need not be reached in light of our determination.

Accordingly, the Surrogate's Court properly granted that branch of the motion of the decedent's estate which was pursuant to CPLR 3211(a) to dismiss the petition.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.