MARINO v. PROCH

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

Neil MARINO, respondent, v. Denise PROCH, et al., appellants.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Isserlis & Sullivan, Bethpage, N.Y. (Alan H. Krystal of counsel), for appellants. Richard A. Izzo, Brooklyn, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated February 27, 1998, which denied their motion pursuant to CPLR 3211 (a)(5) to dismiss the complaint as time-barred, and granted that branch of the plaintiff's cross motion which was to dismiss the affirmative defense of the Statute of Limitations.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, that branch of the cross motion which was to dismiss the affirmative defense of the Statute of Limitations is denied, and the complaint is dismissed.

The plaintiff's cause of action accrued on October 22, 1993, when he allegedly was injured as the result of a motor vehicle accident (see, Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 620 N.Y.S.2d 318, 644 N.E.2d 1009).   Contrary to the plaintiff's contention, the applicable Statute of Limitations expired three years later on the anniversary date of the accident, October 22, 1996 (see, CPLR 214[5];  Evans v. Hawker-Siddeley Aviation, 482 F.Supp. 547;  Furey v. Milgrom, 44 A.D.2d 91, 353 N.Y.S.2d 508;  Siegel, N.Y. Prac. § 34, at 39 [2d ed.] ).  Since this action was commenced by filing on October 23, 1996, it was time-barred and must be dismissed.

MEMORANDUM BY THE COURT.

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