N.Y. C.P.L.R. § 3211

A motion to dismiss for lack of personal jurisdiction requires a hearing when a defendant’s detailed sworn denial rebuts the process server’s affidavit of service.

U.S. Bank N.A. v. Giraldo · filed 2021-03-03(a)(8)

However, Giraldo's affidavit in support of his motion, in which he denied that he was served, denied that he ever lived at the address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual physical appearance, was sufficient to rebut the process server's affidavit ( id. at 819; FV-1, Inc. v Reid , 138 AD3d 922, 923-924; Emigrant Mtge. Co., Inc. v Westervelt , 105 AD3d at 897). Accordingly, a hearing is warranted on the issue of the validity of service of process upon Giraldo, and we remit the matter to the Supreme Court, Nassau County, for that purpose and a for a new determination of his motion thereafter.

A motion to dismiss for lack of personal jurisdiction requires a hearing when specific facts in a sworn denial of service dispute the process server’s account of delivery.

Bank of N.Y. Mellon v. Ziangos · filed 2021-05-12(a)(8)

Accordingly, a hearing is required to resolve those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and the order of reference, and pursuant to CPLR 3211(a)(8) dismiss the complaint insofar as asserted against her.

A court must hold a hearing on disputed service of process before deciding a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction.

Jampolskaya v. Ilona Genis, MD, P.C. · filed 2022-05-11(a)(8)

Here, the Supreme Court erred in determining that branch of the cross motion of the defendants Mark Harooni, Harooni & Sheindlin, M.D., P.C., and Mark Harooni, M.D., PLLC, which was pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against [*2]Harooni for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process.

A motion to dismiss for improper service requires a hearing when disputed facts about service and waiver turn on credibility.

Mohamed v. Abuhamra · filed 2022-07-08(a)(8)

With respect to the issue of service, we conclude that the court erred in denying defendant's motion without first holding a hearing.

A court must hold a hearing before deciding a motion to dismiss for lack of personal jurisdiction when the defendant's submissions raise factual questions about service.

MTGLQ Invs., L.P. v. Mayers · filed 2022-10-26(a)(8)

Under these circumstances, the Supreme Court should not have determined those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate, inter alia, the order and judgment and foreclosure of sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her without holding a hearing ( see U.S. Bank N.A. v Ming Kang Low , 200 AD3d at 1093-1094; Bayview Loan Servicing, LLC v Cave , 172 AD3d at 987).

A motion to dismiss cannot resolve a disputed factual question about whether board minutes bind the defendants.

Kasselakis v. Tiptree, Inc. · filed 2025-05-19(a)(7)

Defendants challenge whether the Board minutes bind defendants. This is not something the court can determine on a motion to dismiss.

After a defendant answers, a motion based on CPLR 3211(a) grounds asserted in the answer is treated as a CPLR 3212 summary judgment motion.

DelVecchio v. Collins · filed 2019-12-26(a)

"Because defendant filed an answer, the subsequent motion 'was a CPLR 3212 motion for summary judgment that was based [in part] upon the CPLR 3211 (a) grounds asserted in [the] answer'" ( Flowers v State of New York , 175 AD3d 1724, 1725 n 2 [2019], quoting Jones v State of New York , 171 AD3d 1362, 1362 n 1 [2019], appeal dismissed 33 NY3d 1056 [2019]).

A failure-to-state-a-cause-of-action ground raised after an answer may be treated as a narrowly framed ground in a summary judgment motion.

Wilson v. Mir · filed 2020-02-13(a)(7)

Since defendant's motion was made after his answer had been filed, the Civil Court properly treated it "as a narrowly framed post-answer CPLR 3211 (a) (7) ground asserted in a summary judgment motion [ see Davis D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:28 at 47-48; C3212:20 at 29-30]" ( Chenango Contr., Inc. v Hughes Assoc ., 128 AD3d 1150, 1151 [2015]; see also Matter of Andrews v State of New York , 138 AD3d 1297, 1298 n 1 [2016]).

A postanswer motion based on CPLR 3211(a) grounds asserted in the answer is treated as a motion for summary judgment under CPLR 3212.

Matter of Andrews v. State of New York · filed 2016-04-14(a)

Although respondents couched this motion as a motion to dismiss under CPLR 3211 (a) (2), (5) and (7), the motion was made postanswer; hence, it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in respondents' answer (see Chenango Contr., Inc. v Hughes Assoc., 128 AD3d 1150, 1151 [2015]; Murray Bresky Consultants, Ltd v New York Compensation Manager's Inc., 106 AD3d 1255, 1257 n [2013]).

A defendant who has raised a statute of limitations defense in his answer should seek summary judgment rather than dismissal under CPLR 3211(a)(5).

Lord Day & Lord, Barrett, Smith v. Broadwall Management, Inc. · filed 2001-03-16(a)(5)

As defendant Bernstein raised the defense of Statute of Limitations in paragraph 12 of his answer, he should have cross-moved for summary judgment, rather than to dismiss under CPLR 3211 (a) (5) (see, Rich v Lefkovits, 56 NY2d 276, 278 [1982]).

After issue has long been joined, an unlabeled motion based on a release should be treated as a motion for summary judgment under CPLR 3212 rather than a CPLR 3211 (a) (5) motion.

Tufail v. Hionas · filed 1989-12-26(a)(5)

However, since issue has long since been joined, the Supreme Court should not have deemed the defendant’s unlabeled motion to be one made pursuant to CPLR 3211 (a) (5) but should have rather treated the motion as one for summary judgment pursuant to CPLR 3212 (see, Rich v Lefkovits, 56 NY2d 276; Connell v Hayden, 83 AD2d 30, 32).

After issue is joined, a motion for summary judgment may rely on CPLR 3211(a) grounds asserted in the answer.

Chin Tsun Yang v. Shukla · filed 2016-04-06(a)

Once issue has been joined, a motion for summary judgment may be based on CPLR 3211 (a) grounds which have been asserted in the answer (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595 [2008]; Mann v Malasky, 41 AD3d 1136 [2007]).

A CPLR 3211 motion made after issue is joined is treated as a motion for summary judgment under CPLR 3212.

Montes v. City of New York · filed 2016-06-22

Since Cortez’s motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 (see JP Morgan Chase Bank, N.A. v Johnson, 129 AD3d 914, 915 [2015]; Wesolowski v St. Francis Hosp., 108 AD3d 525, 526 [2013]; Kavoukian v Kaletta, 294 AD2d 646, 646 [2002]).

A postanswer motion labeled as a motion to dismiss is treated as a motion for summary judgment when it relies on CPLR 3211(a) grounds asserted in the answer.

Washington v. State of New York · filed 2017-06-01(a)

Although denominated as a motion to dismiss, the motion was made postanswer and, thus, it was a motion for summary judgment that was based upon CPLR 3211 (a) grounds asserted in its answer (see Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]).

A motion made after the answer that invokes CPLR 3211 grounds asserted in the answer is treated as a motion for summary judgment under CPLR 3212.

Oppenheimer v. State of New York · filed 2017-07-20

Although defendant framed its motion as a motion to dismiss under CPLR 3211 (a) (2), (7) and (8), as it was made postanswer, “it was a CPLR 3212 motion for summary judgment that was based upon the CPLR 3211 (a) grounds asserted in [defendant’s] answer” (Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016], lv denied 27 NY3d 912 [2016]).

After issue is joined, a party may move for summary judgment on CPLR 3211(a) grounds asserted in the answer.

Landa v. Capital One Bank (USA), N.A. · filed 2019-05-15(a)

A motion for summary judgment may be made after issue has been joined based on CPLR 3211(a) grounds which have been asserted in the answer ( see Light v Light , 64 AD3d 633, 634; Fischer v RWSP Realty, LLC , 53 AD3d 594, 595; Mann v Malasky , 41 AD3d 1136).

A motion based on CPLR 3211(a) grounds made after joinder of issue is properly treated as a motion for summary judgment.

Bryant v. Gulnick · filed 2022-12-22(a)

Although Gulnick delineated his cross motion as one to dismiss, "it was properly a motion for summary judgment based upon CPLR 3211 (a) grounds," given that it was made following joinder of issue ( Matter of Fernandez v Town of Benson , 196 AD3d 1019, 1021 n 3 [3d Dept 2021]; see DiCenzo v Mone , 200 AD3d 1162, 1164 [3d Dept 2021]).

CPLR 3211(a) grounds asserted in an answer may support a summary judgment motion after issue is joined.

Gignak v. Bruno · filed 2025-04-10(a)

Nonetheless, inasmuch as issue was joined, the mother may "properly frame[ ] the dismissal request as one for summary judgment and may base the motion on CPLR 3211 (a) grounds which have been asserted in the answer" ( Mann v [*2]Malasky , 41 AD3d 1136, 1137 [3d Dept 2007]; see Chenango Contr., Inc. v Hughes Assoc. , 128 AD3d 1150, 1151 [3d Dept 2015]; Mark C. Dillon, Prac Commentaries, McKinney's Con Laws of NY, Book 7B, CPLR C3212:35).

Section 3211(a)(5) does not permit dismissal on the pleadings alone when deciding whether application of the Statute of Frauds would be unconscionable requires facts to be determined at trial.

Shapiro v. Shorenstein · filed 1990-01-29(a)(5)

However, we agree with the plaintiff that the court improperly dismissed his second cause of action based on the pleadings alone. The question of whether the circumstances of this case are so egregious as to render it unconscionable to permit the defendants to invoke the Statute of Frauds is one that should not be determined on the pleadings but which should await a full determination of facts after a trial (see, Ackerman v Landes, 112 AD2d 1081; Buddman Distribs. v Labatt Importers, 91 AD2d 838).

A Statute of Frauds defense under CPLR 3211(a)(5) is not necessarily waived by omission from an initial motion to dismiss and answer when the opposing party has a full and fair opportunity to contest it.

International Fidelity Insurance v. Robb · filed 1990-03-26(a)(5)

We do not agree with the plaintiff’s claim that the defendant Robb could not raise the Statute of Frauds (CPLR 3211 [a] [5]) as an affirmative defense on the ground that he had failed to raise it in his initial motion to dismiss or in his original answer.

Section 3211(a)(5) permits dismissal when a cause of action cannot be maintained because of the statute of frauds.

Vista Developers Corp. v. VFP Realty LLC · filed 2007-10-08(a)(5)

In a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5), based on a claim that the statute of frauds bars the suit, “the proper allegations of the complaint must be deemed proved.”

CPLR 3211(a)(5) provides the ground for a motion to dismiss based on the statute of frauds.

MSL Productions, Inc. v. IMR Group LLC · filed 2013-09-04(a)(5)

However, the correct analysis should have been under CPLR 3211 (a) (5), which specifically lists the statute of frauds as a defense thereunder.

CPLR 3211(e) waives a statute of frauds defense when it is not timely raised by motion to dismiss or in the required pleading.

Smith v. Clough · filed 2019-09-27(e)

Since the statute of frauds was not raised as an issue by either party at the small claims trial or via a motion to dismiss the action, it was waived ( see German v Amadio , 29 Misc 3d 141 [A], 2010 NY Slip Op 52124[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; Farkas v Schwarzenberger , 11 Misc 3d 129 [A], 2006 NY Slip Op 50296[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also CPLR 3211 [e]).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of frauds, the court accepts the complaint’s allegations as true and gives the plaintiff every possible favorable inference; a factual dispute over whether an agreement exists can preclude dismissal.

Olden Group, LLC v. 2890 Review Equity, LLC · filed 2022-10-12(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) based on the statute of frauds, the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference ( see Faison v Lewis , 25 NY3d 220, 224; Makris v Boylan , 175 AD3d at 1401). Applying this standard to the plaintiff's allegations in the complaint and given the factual dispute between the parties as to the existence of the option agreement, the Supreme Court should not have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of frauds ( see Makris v Boylan , 175 AD3d at 1401-1402; Luckel v Kolinsky , 160 AD2d 1172, 1173).

On a CPLR 3211(a)(5) motion based on the statute of frauds, the court accepts the complaint’s allegations as true and gives the plaintiff every favorable inference.

Montgomery v. Emanon S. Corp. · filed 2026-02-25(a)(5)

'On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) based on the statute of frauds, the court is required to accept the facts as alleged in the complaint as true and accord the plaintiff the benefit of every possible favorable inference'" ( 374-76 Prospect Place [*2]Tenants Assn., Inc. v City of New York , 231 AD3d 911, 913, quoting Olden Group, LLC v 2890 Review Equity, LLC , 209 AD3d 748, 750).

Section 3211(a)(5) permits a statute of frauds defense to be raised and decided on a motion to dismiss.

Komolov v. Popik · filed 2022-03-22(a)(5)

Regardless of whether the dismissal on statute of frauds grounds was ultimately correct, defendants should have known that the condominium claims, which involved the sale of real property, would be subject to the statute of frauds and thus would require reference to a written contract (General Obligations Law § 5-703[2]); that the statute of frauds could be raised and adjudicated on a motion to dismiss under CPLR 3211(a)(5); and that a dismissal under the statute of frauds would be on the merits, thus precluding any future claim for damages on the sale of the condominium ( see Apostolos v R.D.T. Brokerage Corp. , 180 AD2d 569, 570 [1st Dept 1992]).

A CPLR 3211(a)(5) motion to dismiss a medical malpractice claim as time-barred must be denied when disputed facts about continuous treatment could make the claim timely.

Karanevich-Dono v. Haas · filed 2024-10-17(a)(5)

Defendants fail to establish that plaintiff's claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of "an ongoing relationship of trust and confidence between the patient and physician," the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation ( Devadas v Niksarli , 120 AD3d 1000, 1006 [1st Dept 2014], quoting Ramirez v Friedman , 287 AD2d 376, 377 [1st Dept 2001] [internal quotation marks omitted]; see also Nykorchuck v Henrique s, 78 NY2d 255, 258 [1991]).

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise an issue of fact about whether relation back applies.

Falletta v. Norman · filed 2023-10-06(a)(5)

"On a motion to dismiss pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the defendant has the initial burden of establishing that the limitations period has expired" ( Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1561-1562 [4th Dept 2021]). It is undisputed that Zlotnick met that burden here. The burden thus shifted to plaintiff to raise an issue of fact whether the relation back doctrine applied ( see Marcotrigiano v Dental Specialty Assoc., P.C. , 209 AD3d 850, 851 [2d Dept 2022]; see generally Stepanian v Bed, Bath, & Beyond, Inc. , 207 AD3d 1182, 1183 [4th Dept 2022]; Kulback's Inc. v Buffalo State Ventures, LLC , 197 AD3d 890, 891 [4th Dept 2021]; U.S. Bank N.A. v Brown , 186 AD3d 1038, 1039 [4th Dept 2020]).

On a statute of limitations motion under section 3211(a)(5), once the defendant shows the action is untimely, the plaintiff must raise a question of fact about any claimed toll.

Bank of N.Y. Mellon v. DeMatteis · filed 2023-10-18(a)(5)

We emphasize that, under the procedural posture of this case, the plaintiff had the burden of raising a question of fact as to the applicability of a toll, and hence, the burden of raising a question of fact as to whether the subject property was property of the estate or that the bankruptcy stay otherwise applied.

On a motion to dismiss as time barred, the defendant must make a prima facie showing that the applicable limitations period has expired.

Calltrol Corp. v. DialConnection, LLC · filed 2016-05-10(a)(5)

As such, Defendant has not met its prima facie burden of establishing that the four year limitation period set forth in UCC § 2-725(1) applies to Plaintiff's breach of contract cause of action, and Defendant therefore cannot make an initial showing that this claim is time barred ( see QK Healthcare , 108 AD3d at 69; Paris Suites Hotel, Inc. v Seneca Ins. Co., Inc. , 2011 NY Misc. LEXIS 5656 [Sup Ct, Queens County Dec. 2, 2011]).

On a motion to dismiss a malpractice claim as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual question about tolling or whether the limitations period applies.

Bronstein v. Omega Construction Group, Inc. · filed 2016-04-20(a)

Where dismissal of a malpractice claim is sought pursuant to CPLR 3211 (a) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 901-902 [2014]; Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674 [2014]; Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 979 [2014]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Muscat v. Mid-Hudson Medical Group, P.C. · filed 2016-01-27(a)(5)

“ ‘A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired’ ” (LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007], quoting Gravel v Cicola, 297 AD2d 620, 620 [2002]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to commence the action has expired.

Landow v. Krauss · filed 2013-11-20(a)(5)

“On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired”

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Fleetwood Agency, Inc. v. Verde Electric Corp. · filed 2011-06-14(a)(5)

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing prima facie, that the time in which to sue has expired (see Sabadie v Burke, 47 AD3d 913, 914 [2008]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).

Under CPLR 3211(a)(5), a defendant’s prima facie showing that a claim is time-barred does not warrant dismissal when the plaintiff raises a factual question about whether continuous representation tolled the limitations period.

Howish v. Perrotta · filed 2011-05-31(a)(5)

The Supreme Court properly denied that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him as time-barred. Although the appellant met his prima facie burden of establishing that the complaint was time-barred insofar as asserted against him, in opposition, the plaintiff raised a question of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017-1018 [2010]; Lytell v Lorusso, 74 AD3d 905, 907 [2010]; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 195-196 [2009]; Rehberger v Garguilo & Orzechowski, LLP, 50 AD3d 760 [2008]).

CPLR 3211(a)(5) permits dismissal of time-barred claims in an original complaint even when the plaintiffs plan to amend it to allege separate injuries.

Byrd v. Pinecrest Manor · filed 2011-03-08(a)(5)

Under the circumstances of this case, the Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the causes of .action asserted by the plaintiffs Emma Byrd, Willie Byrd, and Phillip Byrd to recover damages for personal injuries as time-barred without prejudice to renew after the plaintiffs file and serve an amended complaint. The additional injuries allegedly sustained by the plaintiffs occurred in a new apartment to which they had relocated after they allegedly had sustained the injuries set forth in the original complaint. Accordingly, dismissal of the plaintiffs’ original claims would not affect their new claims.

A defendant moving to dismiss a claim as time-barred under CPLR 3211(a)(5) must make a prima facie showing that the claim is time-barred.

Philip F. v. Roman Catholic Diocese · filed 2010-02-09(a)(5)

In moving for dismissal pursuant to CPLR 3211 (a) (5), a defendant must establish, prima facie, that one or more of the asserted causes of action are time-barred (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956, 957 [2008]; Matter of Schwartz, 44 AD3d 779 [2007]).

On a motion to dismiss a claim as time-barred, the defendant must establish when the claim accrued.

Cottone v. Selective Surfaces, Inc. · filed 2009-12-22(a)(5)

In order to sustain this burden, the defendant must establish, inter alia, when the plaintiffs cause of action accrued (see Cimino v Dembeck, 61 AD3d at 803; Swift v New York Med. Coll., 25 AD3d 686 [2006]).

CPLR 3211(a)(5) permits dismissal of a complaint when the claim is time-barred.

Haber v. Nasser · filed 2001-12-03(a)(5)

The Supreme Court properly granted that branch of the respondents’ motion which was to dismiss the complaint insofar as asserted against them as time-barred (see, CPLR 3211 [a] [5]).

When accrual cannot be determined from the complaint, a limitations motion under section 3211(a)(5) requires competent proof establishing the defense if uncontroverted.

State of New York Higher Education Services Corp. v. Starr · filed 1990-02-01(a)(5)

As a preliminary matter, we address the conflict of whether either or both of the motions were to dismiss the complaint, pursuant to CPLR 3211 (a) (5) or, on the other hand, for summary judgment dismissing the complaint pursuant to CPLR 3212 (b). In our view, where, as here, the date of accrual of the cause of action cannot be discerned from the face of the complaint, there is no meaningful distinction between the two. In such a case, regardless of the label placed upon the motion, the movant is required to support the motion with an affidavit or other competent proof sufficient, if uncontroverted, to establish the defense as a matter of law (see, Doyon v Bascom, 38 AD2d 645).

On a motion to dismiss as time barred, the moving party must first make a prima facie showing that the limitations period has elapsed; the opposing party then bears the burden of establishing an applicable exception.

Hoosac Valley Farmers Exchange, Inc. v. AG Assets, Inc. · filed 1990-12-20(a)(5)

When a party moves pursuant to CPLR 3211 (a) (5) for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations, it is that party’s burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed (see, Doyon v Bascom, 38 AD2d 645, 645-646). This burden does not include an obligation on the moving party’s part to negate any or all exceptions that might apply to the statutory period (supra, at 646). Instead, the burden shifts to the party opposing the motion to aver evidentiary facts establishing that the case at hand falls within such exceptions (supra; see, Waters of Saratoga Springs v State of New York, 116 AD2d 875, 878, affd 68 NY2d 777).

A Statute of Limitations defense omitted from a responsive pleading is deemed waived under CPLR 3211(e).

Motteler v. 142-144 Green Street Corp. · filed 1991-05-31(e)

However, in so doing the Supreme Court should have first granted their motion to amend their answer since a Statute of Limitations defense not contained in a responsive pleading is deemed to have been waived (see, CPLR 3211 [e]).

On a motion to dismiss as time barred under CPLR 3211(a)(5), the movant bears the burden of showing that the time to commence the action has expired.

Burpee v. Burpee · filed 1991-08-15(a)(5)

When a party moves pursuant to CPLR 3211 (a) (5) for an order dismissing the complaint on the grounds of the Statute of Limitations, that party has the burden to show that the time to commence the action has, in fact, expired.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the movant must initially make a prima facie showing that the limitations period expired, but need not negate every possible exception.

Anonymous v. Anonymous · filed 1992-03-10(a)(5)

When a party moves pursuant to CPLR 3211 (a) (5) for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations it is that party’s burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed — which burden does not include an obligation on the part of the movant to negate any and all exceptions that might apply to the statutory period (Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822 [1990]).

On a motion to dismiss under § 3211(a)(5), the defendant must make a prima facie showing that the limitations period has expired; the burden then shifts to the plaintiff to establish an exception.

Siegel v. Wank · filed 1992-11-05(a)(5)

It is well settled that on a motion to dismiss pursuant to CPLR 3211 (a) (5), the defendant bears the burden of establishing by prima facie proof that the Statute of Limitations has elapsed (Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823). Once the defendant has met this threshold requirement, "the burden shifts to the [plaintiff] to aver evidentiary facts establishing that the case at hand falls within [an exception to the statutory period]” (supra, at 823).

Under CPLR 3211(e), a defendant waives a statute of limitations defense by failing to raise it in its answer or its motion for summary judgment.

Martin v. Rockwell Graphic Systems, Inc. · filed 1993-04-14(e)

Rockwell waived its Statute of Limitations defense by failing to plead it in its answer or in its motion for summary judgment (see, CPLR 3211 [e]; see also, Matter of Augenblick v Town of Cortlandt, 66 NY2d 775, 777, rearg denied 67 NY2d 647).

CPLR 3211(e) requires a party to raise a Statute of Limitations defense in a timely manner or waive it.

O'Sullivan v. O'Sullivan · filed 1994-07-15(e)

Plaintiff waived his Statute of Limitations defense by failing to raise it in a timely manner (see, CPLR 3211 [e]; Matter of Augenblick v Town of Cortlandt, 66 NY2d 775, 777, rearg denied 67 NY2d 647; Itzkowitz v Town Bd., 139 AD2d 932).

Section 3211(e) treats a statute of limitations defense raised for the first time at trial summation as waived.

Cleaners Products Supply, Inc. v. Garcia · filed 1995-03-21(e)

A Statute of Limitations defense must be affirmatively pleaded as a defense (CPLR 3018 [b]) or raised in a motion to dismiss, otherwise it is deemed waived (CPLR 3211 [e]). Since defendant waited until summation at trial to raise the defense, it is deemed waived.

A defendant seeking dismissal on statute-of-limitations grounds must show that the action is time-barred on the facts alleged or conceded by the plaintiff.

Government Development Bank for Puerto Rico v. Ernst & Young · filed 1995-09-07(a)(5)

The IAS Court properly denied defendants’ motion to dismiss on Statute of Limitations grounds, as defendants did not show that, on the facts as alleged or as conceded by plaintiff, the action was time-barred.

A limitations-based motion to dismiss under CPLR 3211(a)(5) is properly denied when the plaintiff's affidavit raises a factual issue about accrual.

Fraser v. Eli Lilly & Company · filed 1995-11-14(a)(5)

Plaintiffs affidavit was sufficient to raise an issue of fact with respect to at least some of these elements, and the motions to dismiss, accordingly, were properly denied.

A Statute of Limitations defense must be raised in the pleadings; an unpleaded defense cannot support a new limitations argument raised for the first time on appeal.

Travelers Indemnity Co. v. LLJV Development Corp. · filed 1996-05-07(e)

This contention is not cognizable for the first time on appeal (Scherrer v Time Equities, 218 AD2d 116; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624, 626), particularly in the absence of any Statute of Limitations defense asserted in the pleadings (CPLR 3211 [a] [5]; [e]; Dunning v Dunning, 300 NY 341, 343; see also, Kolmer-Marcus, Inc. v Winer, 32 AD2d 763, 764, affd 26 NY2d 795).

On a motion to dismiss as time-barred, the moving party initially must make a prima facie showing that the time to sue has expired.

Assad v. City of New York · filed 1997-04-21(a)(5)

When a party moves to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, that party bears the initial burden of establishing the affirmative defense by prima facie proof that the time in which to sue has expired (see, Siegel v Wank, 183 AD2d 158; Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823; Doyon v Bascom, 38 AD2d 645).

On a motion to dismiss as time barred, defendants bear the burden of establishing that the claim is untimely.

Dana v. Oak Park Marina, Inc. · filed 1997-04-07(a)(5)

Defendants, having moved for dismissal on Statute of Limitations grounds, had the burden of establishing that this cause of action was time barred. Defendants failed to establish that plaintiff learned of the unauthorized and surreptitious videotaping more than one year prior to commencement of the action and, thus, failed to meet their burden.

CPLR 3211(e) bars a statute of limitations defense first raised on appeal when the plaintiff could have countered it in the trial court.

M.S.N.S. Holding Corp. v. City of New York · filed 1998-09-21(e)

Contrary to the City’s contentions, under the circumstances here, it may not raise a Statute of Limitations defense for the first time in response to this appeal (see, CPLR 3211 [e]; Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475; Travelers Indem. Co. v LLJV Dev. Corp., 227 AD2d 151; Via v Franco, 223 AD2d 479; Pitter v Gussini Shoes, 206 AD2d 464).

A statute of limitations defense is waived if the defendant neither pleads it in the answer nor raises it in a motion to dismiss.

Mendez v. Steen Trucking, Inc. · filed 1998-10-02(e)

The Statute of Limitations is an affirmative defense that must be pleaded and proved (see, CPLR 3018 [b]; 3211 [a] [5]; Siegel, NY Prac § 34, at 38 [2d ed]). “The statute of limitations must be raised either by a motion to dismiss or as a defense in the answer; a defendant who does neither waives it” (ibid.., citing CPLR 3018 [b]; 3211 [a] [5]; see, CPLR 3211 [e]). Because Kenworth Trucking neither pleaded the affirmative defense of Statute of Limitations in its answer nor moved to dismiss on the ground of Statute of Limitations, it waived that defense (see, Matter of Dauenhauer v Continental Cas. Ins. Co., 217 AD2d 943, 944).

Section 3211(e) waives a statute of limitations defense if it is not raised in a motion to dismiss or in the answer.

Gross, Shuman, Brizdle & Gilfillan, P. C. v. Bayger · filed 1998-12-31(e)

The failure to assert the Statute of Limitations in a motion to dismiss or in ... the answer constitutes a waiver of that affirmative defense (see, CPLR 3211 [e]; Matter of Augenblick v Town of Cortlandt, 66 NY2d 775, 777, rearg denied 67 NY2d 647; Itzkowitz v Town Bd., 139 AD2d 932).

On a motion to dismiss as time-barred, the defendant initially must establish prima facie that the time to sue has expired.

Savarese v. Shatz · filed 2000-06-05(a)(5)

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired (see, Siegel v Wank, 183 AD2d 158; Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823).

On a statute of limitations motion under CPLR 3211(a)(5), the movant initially bears the burden of showing prima facie that the time to sue has expired.

Duran v. Mendez · filed 2000-11-20(a)(5)

On this motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), the appellant met his initial burden of establishing prima facie that the time to commence an action against him had expired.

A motion to dismiss a claim as time-barred under CPLR 3211(a)(5) should be denied when factual issues remain about when the plaintiff discovered or should have discovered the alleged wrongdoing.

DiMaggio v. DiMaggio · filed 2000-12-04(a)(5)

The Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the complaint as time-barred, as there are factual issues as to when the plaintiff discovered or should have discovered the alleged wrongdoing (see, Gingold v Beekman, 183 AD2d 870; Azoy v Fowler, 57 AD2d 541).

A waived Statute of Limitations defense may be added by amended answer with court leave when it has merit and the delay causes no prejudice or surprise.

Town of Webster v. Village of Webster · filed 2001-02-07(e)

Here, such defense is meritorious and plaintiffs failed to demonstrate prejudice or surprise from defendants’ delay in asserting the defense, and thus defendants’ motion for leave to amend the answers should have been granted (see, Nortic Vil. Corp. v Empire Elec. Supply Co., supra, at 1030).

A motion to dismiss under CPLR 3211(a)(5) as time-barred is properly denied when the plaintiff’s evidence, viewed in her favor, indicates a timely claim.

Millin-Hall v. City of New York · filed 2002-04-18(a)(5)

Denial of appellants’ motion to dismiss the action as time-barred was proper. Plaintiff’s deposition testimony, her affidavit in opposition to the motion and her medical records, when viewed in the light most favorable to her (see, Cron v Hargro Fabrics, 91 NY2d 362, 366), indicate that she has a timely toxic tort claim.

CPLR 3211(a)(5) permits dismissal of a claim barred by the applicable statute of limitations.

Helfand v. Sessler · filed 2002-06-26(a)(5)

Since defendant committed these acts more than six years before the commencement of this action, the court dismisses plaintiff’s claim for unjust enrichment as time-barred. (CPLR 213 [1]; 3211 [a] [5].)

On a motion to dismiss as time barred, conclusory statements based on presumed mailing procedures do not establish the filing date that starts the limitations period.

Ziemba v. City of Troy · filed 2002-06-06(a)(5)

Thus, as Mattice’s statements are conclusory, they are inadequate to establish when the decision was actually filed.

On a CPLR 3211(a)(5) motion based on the statute of limitations, the defendant must first show that the time to sue expired; the plaintiff must then present facts supporting an exception or raising a factual issue about one.

Gravel v. Cicola · filed 2002-09-09(a)(5)

The burden thus shifted to the plaintiffs to aver evidentiary facts establishing that their cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies (see Duran v Mendez, supra; Assad v City of New York, supra; Siegel v Wank, supra).

CPLR 3211(e) treats a statute of limitations defense as waived if it is not pleaded, but a defendant may seek leave to add the defense by amendment absent prejudice or surprise.

Board of Education of Sachem Central School District v. Eugene J. Donohue Associates, Inc. · filed 2002-10-21(e)

Although failure to plead the statute of limitations as an affirmative defense constitutes a waiver of such defense (see CPLR 3211 [e]), a defendant can nonetheless seek leave of the court to amend its ... answer to interpose such a defense in the absence of prejudice or surprise (see Lane v Beard, 265 AD2d 382).

CPLR 3211(a)(5) permits dismissal of an action commenced after the applicable limitations period has expired.

Poje v. Hopkins · filed 2002-10-31(a)(5)

Under any possible interpretation of the facts stated above, it is clear that plaintiff commenced this action after the limitation period had expired and it was properly dismissed by Supreme Court (see CPLR 3211 [a] [5]).

On a motion to dismiss under CPLR 3211(a)(5), the defendant initially must establish that the time to commence the action has expired.

Robertson v. Motorola Communications & Electronics Inc. · filed 2002-11-25(a)(5)

On these motions, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (5), the respondents met their initial burden of establishing prima facie that the time to commence an action against them had expired (see Savarese v Shatz, 273 AD2d 219).

On a motion to dismiss as time-barred, the defendant must prove that the limitations period expired before the action was commenced.

Yonkers Racing Corp. v. City of Yonkers · filed 2003-01-21(a)(5)

In response, the defendant failed to establish when it made the relevant refusal, and, therefore, cannot meet its burden of proving that the action was commenced over four months after the demand was refused.

CPLR 3211(a)(5) permits dismissal of a complaint when the claim is time-barred.

Carcone v. D'Angelo Insurance Agency · filed 2003-02-07(a)(5)

Contrary to the contention of plaintiffs, Supreme Court properly granted the motion of defendant D’Angelo Insurance Agency (D’Angelo) to dismiss the complaint against it under, inter alia, CPLR 3211 (a) (5). The action as against D’Angelo sounds in negligence and accrued, at the latest, in 1995, but it was not commenced until 2001. Thus, the complaint against D’Angelo is time-barred (see 214 [4]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), defendants must first establish that the limitations period expired; the burden then shifts to plaintiffs to show an exception.

Minichello v. Northern Assurance Co. of America · filed 2003-04-21(a)(5)

Upon, in effect, granting that branch of the defendants’ motion which was for leave to renew, the Supreme Court erred in adhering to its original determination denying the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the claim is barred by the contractual period of limitations. The defendants met their initial burden of establishing, prima facie, that the two-year limitations period found in the insurance policy expired prior to the commencement of the action (see Savarese v Shatz, 273 AD2d 219, 220 [2000]; Siegel v Wank, 183 AD2d 158, 159 [1992]), whereupon the burden shifted to the plaintiffs “to aver evidentiary facts establishing that the case at hand falls within [an exception to the limitations period]” (Hoosac Val. Farmers Exch. v AG Assets, 168 AD2d 822, 823 [1990]).

CPLR 3211(e) waives a statute of limitations defense unless it is raised in a motion to dismiss or the responsive pleading.

Greene v. City of New York · filed 2003-04-24(e)

Moreover, CPLR 3211 (e) prescribes that the statute of limitations defense "is waived unless raised either by such motion or in the responsive pleading.” Here, respondents raised the statute of limitations defense in the form of a motion to dismiss as required by the CPLR (see also CPLR 7804 [f] ["respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer”]).

A statute of limitations defense must be raised in a responsive pleading or a motion to dismiss the complaint.

Marine Midland Bank v. Worldwide Industrial Corp. · filed 2003-07-24(e)

Thus, there is no merit to respondents’ assertion of the statute of limitations, which is an affirmative defense (CPLR 3018 [b]; 3211 [a] [5]) that must be asserted either in a responsive pleading or in a motion to dismiss the complaint (CPLR 3211 [e]). The procedural posture of this matter simply affords no opportunity to interpose such defense.

A defendant moving under CPLR 3211(a)(5) to dismiss a legal malpractice claim as time-barred bears the initial burden of showing that the time to sue has expired.

Venturella-Ferretti v. Kinzler · filed 2003-06-23(a)(5)

A defendant seeking dismissal of a legal malpractice claim as time-barred pursuant to CPLR 3211 (a) (5) bears the initial burden of proving, prima facie, that the time in which to commence an action has expired (see Gravel v Cicola, 297 AD2d 620, 621 [2002]).

CPLR 3211(e) provides for waiver of a statute-of-limitations defense.

Velez v. Policastro · filed 2003-11-10(e)

The defendants waived their contention that the complaint was barred by the one-year statute of limitations for battery (see Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; CPLR 3211 [e]).

Section 3211(e) treats a statute of limitations defense as waived when a defendant raises it neither in the answer nor in a motion to dismiss before joining issue.

Fade v. Pugliani/Fade · filed 2004-06-28(e)

Moreover, Thomas, in his answer, did not raise the statute of limitations as an affirmative defense, and did not move to dismiss the complaint insofar as asserted against him prior to joining issue. Thus, he waived it as an affirmative defense, and the Supreme Court therefore properly denied summary judgment in his favor on that ground as well (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Velez v Policastro, 1 AD3d 429, 431 [2003]).

Under CPLR 3211(a)(5), an undisputedly expired limitations period makes defendants prima facie entitled to dismissal, placing the burden on plaintiffs to present evidentiary facts supporting a toll.

Doe v. Holy See · filed 2005-04-14(a)(5)

As the expiration of the last statute of limitations is without dispute, defendants are prima facie entitled to judgment dismissing the complaints pursuant to CPLR 3211 (a) (5) (see Assad v City of New York, 238 AD2d 456 [1997], lv dismissed 91 NY2d 848 [1997]). Thus, the burden now rests upon plaintiffs to present evidentiary facts establishing their entitlement to a toll (id. at 457; see 860 Fifth Ave. Corp. v Superstructures— Engrs. & Architects, 15 AD3d 213, 213-214 [2005]; Alicanti v Bianco, 2 AD3d 373, 374 [2003], lv denied 3 NY3d 602 [2004]; Zoe G. v Frederick F.G., 208 AD2d 675, 675-676 [1994]; Doe v Roe, 192 AD2d 1089, 1090 [1993]; compare Leon v Martinez, 84 NY2d 83, 87-88 [1994] [articulating the standard for considering a motion to dismiss for failure to state a cause of action]).

On a motion to dismiss as time-barred, the court accepts the complaint’s allegations as true and gives them every favorable inference.

190 Murray Street Associates, LLC v. City of Rochester · filed 2005-06-10(a)(5)

Accepting the allegations in the complaint as true and according them the benefit of every favorable inference, as we must (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the action was timely commenced less than one year and 90 days after the “happening of the event upon which the*claim is based,” i.e., the collapse of the sewer line on June 1¡ 2003 (General Municipal Law § 50-i [1] [c]; cf. Nebbia v County of Monroe, 92 AD2d 724, 725 [1983], lv denied 59 NY2d 603 [1983]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant bears the burden of making a prima facie showing that the claim was filed outside the limitations period.

Williams v. Lindenberg · filed 2005-12-05(a)(5)

Here, the defendants sustained their burden of making a prima facie showing that the complaint was time-barred by submitting evidence that the plaintiff’s malpractice claim accrued no later than January 2001, when his time to file a notice of appeal from the adverse order in the underlying mortgage foreclosure action expired, and that this action was not commenced until more than three years later (id.; see Gravel v Cicola, 297 AD2d 620 [2002]).

On a motion to dismiss as time-barred, the defendant must establish when the claim accrued and that the time to sue has expired.

Swift v. New York Medical College · filed 2006-01-24(a)(5)

However, it offered no evidence, documentary or otherwise, to establish that the plaintiff had the legal right, on that date, to demand payment for the amount of clinical funding allegedly owed for the months of May 1998 and June 1998. Thus, the defendant failed to establish its prima facie entitlement to relief pursuant to CPLR 3211 (a) (5), and the fourth cause of action should not have been dismissed.

Section 3211(a)(5) permits dismissal of a claim as time-barred.

Jones v. Amicone · filed 2006-03-07(a)(5)

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, those branches of the motions which were pursuant to CPLR 3211 (a) (5) to dismiss the second cause of action as time-barred are denied, the second cause of action is reinstated, and those branches of the motions which were pursuant to CPLR 3211 (a) (5) to dismiss the first cause of action as time-barred are granted.

CPLR 3211(e) requires a trustee to raise a statute of limitations defense in response to a petition to compel an accounting or waive it.

In re Singer · filed 2006-06-13(e)

The former trustee waived her statute of limitations defense by failing to raise it in response to the grantor’s petition to compel an accounting (CPLR 3211 [e]; cf. Addesso v Shemtob, 70 NY2d 689 [1987]).

Section 3211(a)(5) permits dismissal of claims that are time-barred.

Melendez v. Bernstein · filed 2006-05-23(a)(5)

Accordingly, those branches of the defendant’s motion pursuant to CPLR 3211 (a) (5) which were to dismiss the first and second causes of action should have been granted.

Section 3211(a)(5) permits dismissal when an action is barred by the statute of limitations.

Garcia v. Peterson · filed 2006-09-26(a)(5)

Ordered that the order is reversed insofar as appealed from, on the law, with costs, upon renewal, the motion is granted, the cross motion is denied, the complaint is dismissed, and the order dated June 22, 2005 is vacated. ... Accordingly, the Supreme Court, upon renewal, should have granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred and denied the plaintiffs’ cross motion to compel the settlement of the claim.

Section 3211(e) governs waiver of the affirmative defense of the statute of limitations.

Waters v. Dennison · filed 2006-11-03(e)

It must be noted that respondent has waived the affirmative defense of the statute of limitations. (See, CPLR 3211 [e]; 3018 [b]; see also, Matter of Hans v Burns, 48 AD2d 947 [3d Dept 1975]; Mendez v Steen Trucking, 254 AD2d 715 [4th Dept 1998].)

On a motion to dismiss as time-barred, defendants must show that the time to sue has expired; plaintiffs must then provide evidentiary facts establishing an exception to the statute of limitations.

Soscia v. Soscia · filed 2006-12-26(a)(5)

As to the Judiciary Law and prima facie tort causes of action, the defendants met their prima facie burdens of showing that the time in which to sue had expired, and in opposition the plaintiffs failed to “aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations” (Savarese v Shatz, 273 AD2d 219 [2000] [internal quotation marks omitted]; see Pate v Pate, 17 AD3d 334 [2005]; Green v Albert, 199 AD2d 465 [1993]).

Section 3211(a)(5) allows a court to dismiss a claim as time-barred.

Contos v. Mahoney · filed 2007-01-16(a)(5)

Ordered that the order is reversed, on the law, with costs, and the motion to dismiss the amended complaint insofar as asserted against the appellants as time-barred is granted. ... Therefore, Nissan’s motion to dismiss should have been granted (see Buran v Coupal, 87 NY2d 173, 181 [1995]; Monir v Khandakar, supra; Snolis v Biondo, 21 AD3d 546, 547 [2005]; Hughes v Bi Feng Nie, 12 AD3d 406, 407 [2004]).

Section 3211(a)(5) permits dismissal of a complaint as time-barred.

Wilson v. New York City Health and Hospitals Corp. · filed 2007-01-30(a)(5)

The Supreme Court granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred and denied the plaintiffs’ cross motion to hold the motion in abeyance. We affirm.

Section 3211(a)(5) permits dismissal of a complaint as time-barred.

Iser v. Kerrigan · filed 2007-02-20(a)(5)

Thus, as the plaintiffs did not allege continuous representation by either defendant to extend the relevant limitations period, the Supreme Court properly granted those branches of the defendants’ motions pursuant to CPLR 3211 (a) (5) which were to dismiss the complaint as time-barred.

Section 3211(e) waives a statute of limitations defense when it is not pleaded as an affirmative defense.

Lipman v. Vebeliunas · filed 2007-04-03(e)

The defendants’ contention that the plaintiffs’ causes of action are barred by the statute of limitations was waived by their failure to plead the statute of limitations as an affirmative defense (CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Fade v Pugliani/Fade, 8 AD3d 612, 614 [2004]; Velez v Policastro, 1 AD3d 429, 431 [2003]), or to seek leave to amend their answers to include the affirmative defense (cf. Hickey v Hutton, 182 AD2d 801, 802 [1992]; Dykes v Valentino, 147 AD2d 525 [1989]).

Section 3211(a)(5) permits dismissal of a claim as time-barred when the movant makes a prima facie showing, after which the opposing plaintiff must establish an applicable relation-back doctrine.

Porter v. Annabi · filed 2007-03-27(a)(5)

In opposition to the prima facie showing made by the defendant Key Bank USA, N.A., now known as Keybank National Association (hereinafter Keybank), pursuant to CPLR 3211 (a) (5) that the action insofar as asserted against it was time-barred, the plaintiffs successfully carried their burden of establishing the applicability of the relation-back doctrine (see CPLR 203 [f]; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]).

A defendant seeking dismissal under CPLR 3211(a)(5) on statute of limitations grounds must first make a prima facie showing that the time to sue has expired.

LaRocca v. DeRicco · filed 2007-04-03(a)(5)

“A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired” (Gravel v Cicola, 297 AD2d 620 [2002]).

Section 3211(a)(5) requires a defendant seeking dismissal based on the statute of limitations to establish prima facie that the time to sue has expired, after which the burden shifts to the plaintiff.

Barlow v. Sun Chemical Co. · filed 2007-04-05(a)(5)

“To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired” (Savarese v Shatz, 237 AD2d 219, 220 [2d Dept 2000]). If that showing is made, the burden shifts to the plaintiff to offer proof the action was timely commenced or that it falls within an exception to the statute of limitations (see ibid.).

CPLR 3211(a)(5) allows dismissal of a proceeding as time-barred by the applicable statute of limitations.

Desir v. Klein · filed 2007-04-17(a)(5)

The petitioner did not commence this proceeding pursuant to CPLR article 78, however, until January 2006. Accordingly, the Supreme Court correctly granted that branch of the respondents’ cross motion which was to dismiss the proceeding pursuant to CPLR 3211 (a) (5) as barred by the applicable four-month statute of limitations (see CPLR 217).

Section 3211(e) provides that a statute of limitations defense is waived if it is not timely raised.

Eves v. Ray · filed 2007-07-17(e)

The plaintiff waived his contention that the defendant’s counterclaim was barred by the one-year statute of limitations for intentional infliction of emotional distress (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989 [1984]; Velez v Policastro, 1 AD3d 429, 431 [2003]).

Section 3211(a)(5) places the initial burden on a defendant seeking dismissal as time-barred to show prima facie that the time to commence the action has expired, after which the plaintiff must show an exception or a factual issue.

Texeria v. BAB Nuclear Radiology, P.C. · filed 2007-08-07(a)(5)

A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired (see LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007]; Gravel v Cicola, 297 AD2d 620 [2002]).

Section 3211(a)(5) permits dismissal of a complaint as time-barred.

Cloverleaf Realty of New York, Inc. v. Town of Wawayanda · filed 2007-08-14(a)(5)

Since the plaintiffs did not commence the action within that time frame, the Supreme Court correctly dismissed the complaint {see CPLR 3211 [a] [5]; Yonkers Racing Corp. v City of Yonkers, 301 AD2d 592 [2003]).

CPLR 3211(a)(5) requires a defendant moving to dismiss a time-barred claim to first establish prima facie that the limitations period expired.

In re the Estate of Schwartz · filed 2007-10-09(a)(5)

“To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the [s]tatute of [Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired” (Savarese v Shatz, 273 AD2d 219, 220 [2000]; see Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]).

Section 3211(a)(5) permits dismissal of a time-barred claim and places the initial burden on the movant to show that the limitations period expired.

Xavier v. RY Management Co. · filed 2007-11-13(a)(5)

RY met its initial burden of establishing, prima facie, that the three-year statute of limitations governing personal injury actions had expired prior to the commencement of the action against it (see CPLR 214 [5]; see generally Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]. Thus, the burden shifted to the plaintiff to establish the applicability of the relation-back doctrine (see Nani v Gould, 39 AD3d 508, 509 [2007]; Austin v Interfaith Med. Ctr., 264 AD2d 702 [1999]).

Section 3211(e) allows a defendant who omitted a statute of limitations defense from both the motion to dismiss and answer to seek leave to amend the answer to assert it.

Ingrami v. Rovner · filed 2007-11-27(e)

Where a defendant has failed to assert the statute of limitations defense in both a motion to dismiss and in the answer, he or she may nonetheless seek leave to amend the answer to assert such defense (see CPLR 3211 [e]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]; Lipman v Vebeliunas, 39 AD3d 488, 490 [2007]; Hickey v Hutton, 182 AD2d 801, 802 [1992]).

A statute of limitations defense omitted from a pre-answer motion and answer may be preserved by asserting it in a summary judgment motion made within a week of the answer.

Valentino v. County of Tompkins · filed 2007-11-29(e)

While they did not raise the defense in a pre-answer motion or their answer (see CPLR 3211 [e]), they did assert it in a motion for summary judgment made within a week of their answer. This effectively retracted the waiver (see Lerwick v Kelsey, 24 AD3d 918, 919-920 [2005], lv denied 6 NY3d 710 [2006]; Sheils v County of Fulton, 14 AD3d 919, 921 [2005], lv denied 4 NY3d 711 [2005]) and, because petitioners’ claims with respect to the 2004 and 2005 fee schedules are time-barred, there must be a dismissal as to those claims.

On a motion to dismiss a fraud claim as time-barred under CPLR 3211(a)(5), dismissal is improper when the motion papers do not establish when the plaintiff learned facts revealing the alleged fraud.

Oggioni v. Oggioni · filed 2007-12-11(a)(5)

However, the Supreme Court should not have dismissed the remaining causes of action alleging, inter alia, that the defendants used the power of attorney to remove the plaintiff as a beneficiary under the IRA. ... Here, there was no indication in the challenged pleading or in the papers submitted by the defendants on their motion as to when the plaintiff became aware that the father owned the IRA, and when the defendants withdrew the money from it.

On a motion to dismiss as time-barred, once the defendant shows that the limitations period expired, the plaintiff bears the burden of establishing that relation back applies.

Cardamone v. Ricotta · filed 2008-01-15(a)(5)

Once a defendant has demonstrated that the statute of limitations has expired, “[t]he burden is on the plaintiff to establish the applicability of the [relation back] doctrine” (Nani v Gould, 39 AD3d 508, 509 [2007]; see Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]). The plaintiff failed to do so.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must establish prima facie entitlement to dismissal, with the complaint construed in the plaintiff’s favor.

Sabadie v. Burke · filed 2008-01-29(a)(5)

Construing the facts in the complaint in the light most favorable to the plaintiff, the defendants failed to establish their prima facie entitlement to dismissal pursuant to CPLR 3211 (a) (5) as a matter of law (see Petracca v Petracca, 305 AD2d 566, 567 [2003]).

On a CPLR 3211(a)(5) motion asserting a time bar, the court accepts the complaint’s allegations as true and gives the plaintiff every favorable inference.

Kimmel v. State · filed 2008-03-14(a)(5)

Accepting the allegations in the complaint as true and according plaintiff the benefit of every favorable inference, as we must in reviewing that part of defendants’ motion pursuant to CPLR 3211 (a) (5) (see 190 Murray St. Assoc., LLC v City of Rochester, 19 AD3d 1116 [2005]), we conclude that the allegations in the complaint do not concern several discrete acts but, rather, they concern a hostile work environment, i.e., “a. series of separate acts that collectively constitute one ‘unlawful employment practice’ ” (National Railroad Passenger Corporation v Morgan, 536 US 101, 117 [2002]).

On a motion to dismiss an Article 78 petition as time-barred, the respondent bears the burden of establishing when the petitioner received notice of the determination.

Chrysler v. Goord · filed 2008-03-21(a)(5)

Memorandum: Supreme Court erred in granting respondent’s motion to dismiss the CPLR article 78 petition as time-barred (see CPLR 3211 [a] [5]). The applicable four-month statute of limitations pursuant to CPLR 217 did not begin to run until petitioner “received notice of the . . . determination” (Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]), and respondent failed to meet his burden of establishing that petitioner received such notice more than four months before commencing this proceeding (see Matter of Edwards v Coughlin, 191 AD2d 1044, 1044-1045 [1993]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), a triable issue about continuous representation tolling prevents dismissal even when the defendants show that the limitations period expired.

Rehberger v. Garguilo & Orzechowski, LLP · filed 2008-04-08(a)(5)

In support of their respective motions pursuant to CPLR 3211 (a) (5), each of the defendants demonstrated, prima facie, that the time in which to sue had expired and that the complaint was time-barred as against them (see McCoy v Feinman, 99 NY2d 295 [2002]; Sabadie v Burke, 47 AD3d 913 [2008]; Matter of Schwartz, 44 AD3d 779 [2007]; Savarese v Shatz, 273 AD2d 219 [2000]; CPLR 214 [6]). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (see Town of Wallkill v Rosenstein, 40 AD3d 972 [2007]; Tropp v Lumer, 23 AD3d 550 [2005]; Savarese v Shatz, 273 AD2d 219 [2000]). Thus, the complaint should not have been dismissed as time-barred.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), once the defendant makes a prima facie showing, the plaintiff must provide evidentiary facts establishing an exception to the statute of limitations.

Reiner v. Jaeger · filed 2008-04-08(a)(5)

Here, in support of her cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), the defendant made a prima facie showing that the action was time-barred by establishing that the cause of action accrued on December 16, 1997, the date she allegedly wrongfully acquired the subject property solely in her name, rather than as a co-owner with the plaintiff (cf. Matter of Schwartz, 44 AD3d 779 [2007]; Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]). Accordingly, the burden shifted to the plaintiff to “aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations” (Savarese v Shatz, 273 AD2d 219, 220 [2000] [internal quotations marks omitted]; see Swift v New York Med. Coll., 25 AD3d at 687).

Under CPLR 3211(a)(5), a defendant moving to dismiss a claim as time-barred bears the initial burden of showing that the time to sue has expired.

Island ADC, Inc. v. Baldassano Architectural Group · filed 2008-03-25(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Sabadie v Burke, 47 AD3d 913 [2008]; Matter of Schwartz, 44 AD3d 779 [2007]).

CPLR 3211(a)(5) permits dismissal of claims barred by the statute of limitations.

Mashihi v. 166-25 Hillside Partners · filed 2008-05-13(a)(5)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the second and third causes of action of the complaint for an accounting and a winding-up of partnership affairs on the ground that those causes of action were time-barred.

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then present evidentiary facts supporting an exception or a factual dispute about one.

Santo B. v. Roman Catholic Archdiocese · filed 2008-05-27(a)(5)

The respondents had the initial burden of demonstrating, prima facie, that the time within which to commence the action had expired (see Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]; LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007]). ... The respondents thus satisfied their prima facie showing, and the burden shifted to the plaintiff “to aver evidentiary facts establishing that his . . . cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies” (Texeria v BAB Nuclear Radiology, P.C., 43 AD3d at 405).

Section 3211(a)(5) permits dismissal of a complaint when the claim is barred by the statute of limitations.

Hirsh v. Perlmutter · filed 2008-07-22(a)(5)

Accordingly, the motion to dismiss the amended complaint should have been granted on the ground that the action, insofar as it is asserted against Cartel Perlmutter, is barred by the statute of limitations (see CPLR 3211 [a] [5]).

On a motion to dismiss as time-barred, the defendant initially must show that the time to commence the action has expired.

John Doe No. 6 v. Yeshiva & Mesivta Torah Temimah, Inc. · filed 2008-09-09(a)(5)

On these motions, and taking the allegations of the complaint as true, defendants have “the initial burden of demonstrating, prima facie, that the time within which to commence the action [has] expired.”

CPLR 3211(a)(5) permits dismissal of a defamation claim that is time-barred.

Sandhu v. Mercy Medical Center · filed 2008-09-23(a)(5)

Further, the Supreme Court properly granted that branch of Mercy’s motion which was to dismiss the defamation cause of action as time-barred (see CPLR 215 [3]; 3211 [a] [5]; Losco Group v Yonkers Residential Ctr., 276 AD2d 532 [2000]).

On a motion to dismiss as time-barred under CPLR 3211 (a) (5), the movant must establish, prima facie, that the time to sue has expired.

Sullivan v. Atlantic Paratransit of N.Y.C., Inc. · filed 2008-06-24(a)(5)

The respondents failed to establish that Public Authorities Law § 1276 (1) and (2) apply to this action and therefore, did ...not meet their burden of establishing, prima facie, that the time in which to sue had expired (see Savarese v Shatz, 273 AD2d 219 [2000]).

Section 3211(a)(5) permits dismissal of a petition barred by the applicable statute of limitations.

Russell v. New York Citywide Administrative Services · filed 2008-10-07(a)(5)

The Supreme Court also properly granted that branch of NYCTA’s motion which was pursuant to CPLR 3211 (a) (5) and 7804 (f) to dismiss the petition insofar as asserted against it upon the ground that it is barred by the applicable statute of limitations.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the movant bears the burden of establishing that the claim is untimely.

Stubbs v. Pirzada · filed 2008-10-07(a)(5)

Upon its motion to dismiss, Medstar met its burden of establishing that the wrongful death claim was time-barred by the applicable two-year statute of limitations (see EPTL 5-4.1; Garcia v Peterson, 32 AD3d 992 [2006]; Assad v City of New York, 238 AD2d 456 [1997]).

Section 3211(a)(5) permits dismissal when the defendant establishes that the applicable statute of limitations has expired.

Keselman v. Webber · filed 2008-11-25(a)(5)

Since the defendant met his burden of establishing that the applicable statute of limitations had expired, he was entitled to dismissal of the plaintiffs claims sounding in dental malpractice (see Assad v City of New York, 238 AD2d 456 [1997]).

CPLR 3211(a)(5) permits dismissal of a claim barred by the statute of limitations.

Hebrew Institute for Deaf & Exceptional Children v. Kahana · filed 2008-12-16(a)(5)

Accordingly, upon renewal and reargument, the Supreme Court should have granted that branch of the appellant’s motion which was to dismiss the causes of action alleging conversion and aiding and abetting conversion insofar as asserted against him as time-barred pursuant to CPLR 3211 (a) (5).

Section 3211(a)(5) permits dismissal of a complaint as time-barred when the plaintiff misses a contractual limitations period and fails to show that the defendant induced a delay in filing.

Dimmick v. New York Property Insurance Underwriting Ass'n · filed 2008-12-09(a)(5)

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

On a CPLR 3211(a)(5) motion to dismiss a claim as time-barred, the plaintiff must provide evidentiary facts supporting a timely accrual date once the defendant establishes untimeliness.

Lessoff v. 26 Court Street Associates, LLC · filed 2009-01-13(a)(5)

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.

A motion to dismiss under CPLR 3211(a)(5) for untimeliness fails when the parties asserting the statute of limitations defense do not meet their burden.

Brown v. New York State Racing & Wagering Board · filed 2009-01-13(a)(5)

The circumstances here do not permit the Racing and Wagering Board and NYSED to meet their burden on the issue of untimeliness and the Supreme Court properly denied the application to dismiss the proceeding pursuant to CPLR 3211 (a) (5).

On a motion to dismiss as time-barred, once the movant shows that the limitations period expired before the claim was filed, the plaintiff must present sufficient evidence that relation back applies.

Alvarado v. Beth Israel Medical Center · filed 2009-03-31(a)(5)

On his motion, Cohen established that the amended complaint was filed after the expiration of the 2Va-year statute of limitations applicable to a cause of action to recover damages for medical malpractice (see CPLR 214-a; Teer v Queens-Long Is. Med. Group, 303 AD2d 488, 489 [2003]). The burden then shifted to the plaintiffs to present sufficient evidence that the relation-back doctrine applied (see Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]).

On a motion to dismiss a claim as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Cimino v. Dembeck · filed 2009-04-21(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).

On a motion to dismiss a claim as time-barred, once the defendant makes a prima facie showing, the plaintiff must allege evidentiary facts supporting a limitations exception or a factual dispute about one.

6D Farm Corp. v. Carr · filed 2009-06-16(a)(5)

Once the prima facie showing is made, the burden shifts to the plaintiff to aver evidentiary facts establishing that the cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies (see Santo B. v Roman Catholic Archdioscese of N.Y., 51 AD3d at 957; Texeria v BAB Nuclear Radiology, EC., 43 AD3d at 405).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of limitations, the defendant must initially show that the time to sue has expired, including when the claim accrued.

Kuo v. Wall Street Mortgage Bankers, Ltd. · filed 2009-09-15(a)(5)

“To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired . . . [i]n order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiffs cause of action accrued. Where, as here, the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff ‘possesses a legal right to demand payment’ ”

CPLR 3211(a)(5) permits dismissal of a petition as time-barred.

McCrory v. VilLage of Scarsdale · filed 2009-11-04(a)(5)

The Supreme Court properly granted the motion of the Village of Scarsdale pursuant to CPLR 3211 (a) (5) and 7804 (f) to dismiss the petition as time-barred.

On a CPLR 3211(a)(5) motion, when the limitations period has expired, the plaintiff bears the burden of establishing that the claim relates back.

Boodoo v. Care · filed 2009-11-10(a)(5)

Since it is undisputed that the statute of limitations had expired with respect to the amended verified complaint naming the defendant John Choi as a defendant, the burden was on the plaintiff to establish the applicability of the relation-back doctrine (see Cardamom v Ricotta, 47 AD3d 659, 660 [2008]; Nani v Gould, 39 AD3d 508, 509 [2007]). ... Accordingly, because the plaintiff did not meet her burden, that branch of Choi’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the amended verified complaint insofar as asserted against him should have been granted.

A disputed factual basis for a statute of limitations defense does not warrant dismissal under CPLR 3211(a)(5) at this stage.

Lazic v. Currier · filed 2010-01-21(a)(5)

Defendants’ statute of limitations defense rests upon factual contentions, some of which are contested by plaintiffs, and thus does not provide a ground for dismissal at this procedural juncture.

On a motion to dismiss a claim as time-barred, the defendant must make a prima facie showing that the time to commence the action has expired.

Minskoff Grant Realty & Management Corp. v. 211 Manager Corp. · filed 2010-03-16(a)(5)

In moving for dismissal pursuant to CPLR 3211 (a) (5), a defendant must establish, prima facie, “that the time in which to commence an action has expired” (Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]; see 6D Farm Corp. v Carr, 63 AD3d at 905-906; Savarese v Shatz, 273 AD2d 219 [2000]).

A statute of limitations defense is waived if it is raised neither in the answer nor in a preanswer motion to dismiss.

Ferri v. Ferri · filed 2010-03-23(e)

The appellant waived the defense of the statute of limitations, as that defense was raised neither in her answer nor in a preanswer motion to dismiss the complaint (see CPLR 3211 [e]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must make a prima facie showing that the time to sue has expired, with the complaint construed in the plaintiff’s favor.

Morris v. Gianelli · filed 2010-03-23(a)(5)

Construing the facts in the complaint in the light most favorable to the plaintiff, we find that the defendants failed to establish their prima facie entitlement to dismissal pursuant to CPLR 3211 (a) (5).

Section 3211(e) waives a statute of limitations defense unless it is raised in a responsive pleading or a pre-answer motion to dismiss.

Horst v. Brown · filed 2010-04-06(e)

CPLR 3211 (e) explicitly provides that an objection or defense. based on the statute of limitations is waived unless raised in a responsive pleading or in a pre-answer motion to dismiss.

On a motion to dismiss as time-barred, once the defendant establishes that the limitations period expired, the plaintiff must show an exception, a factual issue about an exception, or evidence supporting tolling.

Babu v. Consolidated Edison Co. of New York, Inc. · filed 2010-04-20(a)(5)

In support of its motion, the defendant established, prima facie, that the action was untimely because the six-year statute of limitations expired before the plaintiff commenced this action (see Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]; Savarese v Shatz, 273 AD2d 219 [2000]). The burden then shifted to the plaintiff to establish the applicability of an exception to the statute of limitations, raise an issue of fact as to the applicability of any such exception, or submit evidence sufficient to toll the statute of limitations (see Philip F. v Roman Catholic Diocese of Las Vegas, 70 AD3d 765 [2010]; Pate v Pate, 17 AD3d 334 [2005]; Savarese v Shatz, 273 AD2d 219 [2000]).

Section 3211(a)(5) does not warrant dismissal on statute of limitations grounds when the date final payment became due remains a question of fact for trial.

Love Drywall, Inc. v. Harbor Light Development Corp. · filed 2010-04-27(a)(5)

Moreover, the Supreme Court did not err in concluding that the question of when final payment became due for the plaintiffs services “so as to commence the running of the statute of limitations is one of fact to be determined at trial” (In re Grosso, 9 BR 815, 822 [1981]; see Dittmar Explosives v A. E. Ottaviano, Inc., 20 NY2d 498, 503 [1967]; Utica Sheet Metal Corp. v Myers-Laine Corp., 45 AD2d 116, 119 [1974]). Accordingly, the Supreme Court also properly denied that branch of the motion to dismiss which was pursuant to CPLR 3211 (a) (5).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially must show that the time to sue has expired.

Tsafatinos v. Wilson Elser Moskowitz Edelman & Dicker, LLP · filed 2010-07-13(a)(5)

The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5) as time-barred. “To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired” (Savarese v Shatz, 273 AD2d 219, 220 [2000]; see Morris v Gianelli, 71 AD3d 965, 967 [2010]).

On a motion to dismiss under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then show facts supporting an exception or a factual issue about one.

Romanelli v. Disilvio · filed 2010-08-10(a)(5)

On a motion to dismiss pursuant to CPLR 3211 (a) (5), the moving defendant must establish, prima facie, “that the time in which to commence an action has expired. The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies” (Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007] [citations omitted]; see 6D Farm Corp. v Carr, 63 AD3d 903, 905-906 [2009]; Savarese v Shatz, 273 AD2d 219 [2000]).

CPLR 3211(a)(5) permits dismissal of declaratory judgment claims that are time-barred.

Walter v. Starbird-Veltidi · filed 2010-11-09(a)(5)

The Supreme Court properly granted those branches of the defendant’s motion pursuant to CPLR 3211 (a) (5) which were to dismiss, as time-barred, the second and third causes of action seeking declaratory relief.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to sue has expired.

Kennedy v. Fischer · filed 2010-11-23(a)(5)

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Tsafatinos v Wilson Elser Moskowitz Edelman & Dicker, LLP, 75 AD3d 546 [2010]; Morris v Gianelli, 71 AD3d 965, 967 [2010]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).

Section 3211(a)(5) permits dismissal of an action barred by the applicable statute of limitations.

Town of Riverhead v. County of Suffolk · filed 2010-11-30(a)(5)

Consequently, the Town’s commencement of this action in 2009 was time-barred, and the County was entitled to dismissal of the action pursuant to CPLR 3211 (a) (5).

A defendant seeking dismissal as time-barred under CPLR 3211(a)(5) bears the initial burden of showing that the time to sue has expired.

Chung v. Wang · filed 2010-12-07(a)(5)

To dismiss a cause of action pursuant to CPLR 3211 (a) (5), on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired (see Sabadie v Burke, 47 AD3d 913 [2008]; Savarese v Shatz, 273 AD2d 219 [2000]).

CPLR 3211(a)(5) permits dismissal of claims filed after the applicable limitations period.

Buchanan v. Beacon City School District · filed 2010-12-21(a)(5)

The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to ... dismiss the first and second causes of action of the complaint. The complaint was filed more than one year and 90 days after those causes of action accrued and thus was untimely (see Education Law § 3813 [2]; General Municipal Law § 50-i [1]; ...).

A party seeking dismissal under CPLR 3211(a)(5) as time-barred bears the initial burden of establishing that the claim is time-barred.

Aroesty v. Farash Corp. · filed 2010-12-30(a)(5)

Supreme Court properly denied that part of plaintiffs motion seeking dismissal of the counterclaims pursuant to CPLR 3211 (a) (5) inasmuch as plaintiff failed to meet his initial burden of establishing that any of the counterclaims is time-barred (see generally Morris v Gianelli, 71 AD3d 965, 967 [2010]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must initially show that the time to sue has expired, including when the claim accrued.

LARKIN, LILY v. ROCHESTER HOUSING AUTHORITY · filed 2011-02-10(a)(5)

In support of its motion insofar as it was based on CPLR 3211 (a) (5), defendant had “the initial burden of establishing prima facie that the time in which to sue has expired” (Savarese v Shatz, 273 AD2d 219, 220; see Cimino v Dembeck, 61 AD3d 802), and thus was required to “establish, inter alia, when the plaintiff’s cause of action accrued” (Swift v New York Med. Coll., 25 AD3d 686).

On a motion to dismiss under CPLR 3211(a)(5), the defendant bears the initial burden of showing that the time to sue has expired, including when the claim accrued.

Larkin v. Rochester Housing Authority · filed 2011-02-10(a)(5)

In support of its motion insofar as it was based on CPLR 3211 (a) (5), defendant had “the initial burden of establishing prima facie that the time in which to sue has expired” (Savarese v Shatz, 273 AD2d 219, 220 [2000]; see Cimino v Dembeck, 61 AD3d 802 [2009]), and thus was required to “establish, inter alia, when the plaintiffs cause of action accrued” (Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]).

On a statute of limitations motion under § 3211(a)(5), the defendant bears the initial burden of showing that the time to sue has expired, and the court draws favorable inferences for the plaintiff.

Benn v. Benn · filed 2011-03-17(a)(5)

“On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. ... In fact, in construing the e-mails in a light most favorable to plaintiff, the conclusion to be drawn is that plaintiff was acknowledging that he and Stefan had been fighting over the value of his labor and not over whether or not plaintiff would receive title to the apartment.

A statute of limitations defense omitted from the answer and a CPLR 3211(a) motion may still be raised on summary judgment.

Lewiarz v. Travco Insurance · filed 2011-03-24(a)

Preliminarily, we conclude that Supreme Court properly entertained defendants’ statute of limitations argument set forth for the first time in their motion for summary judgment.

On a limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the burden then shifts to the plaintiff to show tolling or timely commencement.

Krichmar v. Scher · filed 2011-03-29(a)(5)

To dismiss an action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must satisfy the threshold burden of demonstrating, prima facie, that the time within which to sue has expired, and once that showing has been made, the burden shifts to the opponent to establish that the statute of limitations has been tolled or that he or she actually commenced the action within the applicable limitations period (see Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d 734 [2008]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).

On a motion to dismiss under CPLR 3211 (a) (5), the court must accept the complaint’s allegations as true and resolve all inferences in the plaintiff’s favor.

Flatlands Acupuncture, P.C. v. Fireman's Fund Insurance · filed 2011-04-05(a)(5)

Upon a motion to dismiss pursuant to CPLR 3211 (a) (5), a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815; Sabadie v Burke, 47 AD3d 913 [2008]).

Under CPLR 3211(a)(5), a fraud claim should not be dismissed as time-barred when the plaintiff’s knowledge of facts revealing the fraud is not conclusively established.

Gorelick v. Vorhand · filed 2011-04-19(a)(5)

Where, as here, “it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts” ... Accordingly, the Supreme Court erred when it, upon reargument, in effect, adhered to so much of the determination in the order entered September 11, 2009, as granted that branch of the motion of the defendant Harry Vorhand which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against the defendants Milan Vorhand, Harry Vorhand, and Thomas Vorhand as time-barred.

CPLR 3211 (a) (5) permits dismissal of a complaint filed after the applicable statute of limitations expires.

Mose v. San giovanni · filed 2011-05-17(a)(5)

Since this action was commenced after the expiration of the applicable three-year statute of limitations, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred (see CPLR 214 [5]; Rinaldi v Rochford, 77 AD3d 720 [2010]).