N.Y. C.P.L.R. § 3211

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.

Rakusin v. Miano · filed 2011-05-17(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.

CPLR 3211(a)(5) permits dismissal as time-barred when the defendant makes a prima facie showing and the plaintiff raises no factual question about tolling or timely commencement.

Williams v. New York City Health and Hospitals Corp. · filed 2011-05-31(a)(5)

Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

CPLR 3211(e) permits a party to move to dismiss on statute of limitations grounds after raising that defense in an answer.

MERRILL LYNCH CREDIT CORPORATION v. SMITH, DOUGLAS P. · filed 2011-09-30(e)

Contrary to the Chamberlains’ further contention, nothing in CPLR 3211 (e) prohibits a party from moving to dismiss a cause of action based on the statute of limitations after raising that defense in an answer (see generally Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 326).

On a statute of limitations motion under Section 3211(a)(5), the moving defendant must initially establish that the time to commence the action has expired.

Baptiste v. Harding-Marin · filed 2011-10-11(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 must first show that the time to commence the action has expired.

Christodoulou v. Christodoulou · filed 2011-11-09(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 under CPLR 3211(a)(5) on statute of limitations grounds, the defendant must first show that the time to commence the action has expired.

Yang v. Oceanside Union Free School District · filed 2011-12-06(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.

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

DeStaso v. Condon Resnick, LLP · filed 2011-12-20(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 Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]).

Section 3211(a)(5) permits dismissal as time-barred when the defendant shows the filing period expired and the plaintiff fails to raise a factual issue about tolling.

Zaborowski v. Local 74, Service Employees International Union · filed 2012-01-17(a)(5)

Here, in opposition to the appellant’s prima facie showing that the time in which to commence this action has expired, the plaintiff failed to raise an issue of fact as to whether the statute of limitations was tolled pursuant to CPLR 205 (a). ... Accordingly, the Supreme Court should have granted that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred.

A movant seeking dismissal under CPLR 3211(a)(5) must establish a prima facie entitlement to that relief.

Brach v. Harmony Services, Inc. · filed 2012-03-20(a)(5)

That branch of the appellants’ cross motion which was pursuant to CPLR 3211 (a) (5) also was properly denied, as the appellants failed to establish their prima facie entitlement to dismissal of the complaint on that basis (see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]).

Section 3211(a)(5) permits dismissal as time-barred when the defendant establishes untimeliness and the plaintiff raises no factual issue about an exception or tolling.

Shalik v. Hewlett Associates, L.P. · filed 2012-03-20(a)(5)

Accordingly, the defendants established, prima facie, that the plaintiffs possessed information regarding the questionable authenticity of the decedent’s signature on the Amendment more than two years before they filed the complaint. In opposition, the plaintiffs failed to raise an issue of fact as to the applicability of an exception to the statute of limitations or as to whether the statute of limitations was tolled ... Therefore, the Supreme Court correctly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a factual issue about timeliness or tolling.

Jalayer v. Stigliano · filed 2012-04-03(a)(5)

In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]; Krichmar v Scher, 82 AD3d 1164, 1165 [2011]). The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether they actually commenced the action within the applicable limitations period (see Williams v New York City Health & Hosps. Corp., 84 AD3d 1358 [2011]).

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

In re Chung Li · filed 2012-05-01(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, the movant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Island ADC, Inc. v Baldassano Architectural Croup, P.C., 49 AD3d 815, 816 [2008]).

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.

Macaluso v. Col · filed 2012-05-08(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 applicable statute of limitations, a defendant has the initial burden of establishing, prima facie, that the time in which to sue has expired (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]).

On a limitations motion under CPLR 3211(a)(5), the defendant must show that the limitations period expired, after which the plaintiff must raise a factual issue about tolling or another reason the period does not apply.

Soffler v. Isla · filed 2012-06-13(a)(5)

The defendant made a prima facie showing that at the time this action was commenced, the statute of limitations had expired, and in opposition, the plaintiffs failed to raise an issue of fact as to whether the statute of limitations was tolled or otherwise inapplicable (see Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768 [2012]; Rakusin v Miano, 84 AD3d 1051 [2011]).

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

Vilsack v. Meyer · filed 2012-06-13(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 limitations motion concerning fraud, the defendant must make a prima facie showing that reasonable diligence could have uncovered the fraud earlier.

Vilsack v. Meyer · filed 2012-06-13(a)(5)

The appellants did not make a prima facie showing that the fraud could have been discovered earlier with reasonable diligence (see Sargiss v Magarelli, 12 NY3d at 532; JP Morgan Chase Bank, N.A. v Kalpakis, 91 AD3d 722, 723 [2012]).

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

A.F. Rockland Plumbing Supply Corp. v. Hudson Shore Associated Ltd. Partnership · filed 2012-06-20(a)(5)

The defendants failed to meet their prima facie burden of demonstrating that the complaint was time-barred.

A party moving to dismiss a petition as time-barred bears the burden of establishing when the limitations period began.

Baez v. Brown · filed 2012-08-15(a)(5)

It was the District Attorney’s burden to establish when the Queens County Clerk received the application for poor person relief, which he failed to do, contending instead that the date on which the Queens County Clerk’s office received the signed order granting CPLR 1101 relief was the date of commencement.

CPLR 3211(e) treats a statute of limitations defense as waived if it is not raised in an answer, amended answer, or pre-answer motion to dismiss.

Gauthier v. Countryway Insurance · filed 2012-11-01(e)

Initially, we note that defendant’s statute of limitations argument was waived by defendant’s failure to raise it in the answer or amended answer, or in a pre-answer motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then show tolling or timely commencement.

Bullfrog, LLC v. Nolan · filed 2013-01-16(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired (see Yang v Oceanside Union Free School Dist., 90 AD3d 649 [2011]). Once that showing has been made, the burden shifts to the plaintiff to establish that the statute of limitations has been tolled or that the plaintiff actually commenced the action within the applicable limitations period (see id.).

On a motion to dismiss under § 3211(a)(5) as time-barred, the defendant must initially establish untimeliness; the plaintiff may then raise a factual question about tolling or timely commencement.

Harrington v. County of Suffolk · filed 2013-01-30(a)(5)

In support of their motion to dismiss the complaint, the defendants met their initial burden of establishing, prima facie, that the causes of action were time-barred, in that the action was not commenced within one year and 90 days after the “happening of the event” upon which the plaintiffs’ claims were based (General Municipal Law § 50-i [1]; see Greco v Incorporated Vil. of Freeport, 66 AD3d 836, 836-837 [2009]). In response, the plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether they actually commenced the action within the applicable limitations period (see Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]). ... Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the complaint as time-barred pursuant to CPLR 3211 (a) (5).

On a motion to dismiss a claim as time-barred, the defendant initially bears the burden of showing that the time to sue has expired.

House of Spices (India), Inc. v. SMJ Services, Inc. · filed 2013-02-27(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) upon the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue had expired (see Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1040 [2009]).

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

Singh v. Edelstein · filed 2013-02-27(a)(5)

To dismiss a complaint 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 DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812 [2011]).

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

Benjamin v. Keyspan Corp. · filed 2013-03-27(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] [internal quotation marks omitted]; see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 90 AD3d 821, 822 [2011]).

A defendant moving to dismiss under CPLR 3211(a)(5) bears the initial burden of establishing that the action is time-barred.

Northeastern Industrial Park, Inc. v. Hoosick Valley Contractors, Inc. · filed 2013-05-02(a)(5)

In moving to dismiss the complaint pursuant to CPLR 3211 (a) (5), defendant bore the initial burden to establish, prima facie, that the action was time-barred ... We agree with Supreme Court that this burden was not met.

A defendant seeking dismissal under CPLR 3211(a)(5) on statute of limitations grounds bears the initial burden of showing that the time to sue has expired.

Felshman v. Yamali · filed 2013-05-22(a)(5)

To dismiss a complaint 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 DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812 [2011]).

A defendant must raise a statute of limitations defense in its answer or a pre-answer motion to dismiss to obtain dismissal on that ground.

Faison v. Lewis · filed 2013-05-29(e)

The complaint, however, is still viable insofar as asserted against the defendants Tonya Lewis, also known as Tonya Taylor, also known as Tony Lewis Taylor, and Dorothy Lewis, since they failed to raise the statute of limitations defense in their answer or in a pre-answer motion to dismiss (see Dougherty v City of Rye, 63 NY2d 989 [1984]; Horst v Brown, 72 AD3d 434 [2010]; Mann v Rusk, 14 AD3d 909 [2005]).

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute-of-limitations grounds bears the initial burden of showing that the time to sue has expired.

Singh v. New York City Health & Hospitals Corp. · filed 2013-06-12(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 (see Benjamin v Keyspan Corp., 104 AD3d 891 [2013]).

A party waives a statute of limitations defense if it fails to raise it in the answer or a timely pre-answer motion; a catch-all reservation of defenses does not preserve it.

Kowalczyk v. Village of Monticello · filed 2013-06-27(e)

Simply put, a party cannot employ a catch-all provision in an attempt to preserve any and all potential defenses/objections for future use without affording notice to the opposing party — particularly where, as here, the defense/ objection at issue is both apparent from the face of the petition and, more to the point, is specifically waived if not timely raised (see CPLR 3211 [e]).

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

Matteawan On Main, Inc. v. City of Beacon · filed 2013-08-21(a)(5)

In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired (see Jalayer v Stigliano, 94 AD3d 702, 703 [2012]; Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850 [2011]; Rakusin v Miano, 84 AD3d 1051 [2011]).

On a motion to dismiss as time-barred, the defendant must establish when the cause of action accrued to make a prima facie showing.

Matteawan On Main, Inc. v. City of Beacon · filed 2013-08-21(a)(5)

Although the defendant, the City of Beacon, contends that the first, third, and fifth causes of action asserted in the amended complaint accrued when the plaintiff paid the disputed taxes, it offered no evidence to establish when those taxes were paid. Thus, the City failed to establish its prima facie entitlement to relief pursuant to CPLR 3211 (a) (5), and that branch of the motion was properly denied (see Swift v New York Med. Coll., 25 AD3d at 687).

Under CPLR 3211(a)(5), a defendant who shows that a claim is time-barred shifts the burden to the plaintiff to raise a factual issue about tolling or another reason the limitations period does not apply.

Peykarian v. Chien · filed 2013-09-11(a)(5)

Thus, the burden shifted to the plaintiffs to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable ... .

A motion to dismiss a professional malpractice claim as time-barred must be denied unless the gap in services establishes that representation was not continuous as a matter of law.

Regency Club at Wallkill, LLC v. Appel Design Group, P.A. · filed 2013-12-04(a)(5)

In this regard, a motion to dismiss pursuant to CPLR 3211 (a) (5) will be denied unless the facts establish that a gap between the provision of professional services on the particular matter is so great that the representation cannot be deemed continuous as a matter of law (see Gomez v Katz, 61 AD3d at 116-117).

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

Petito v. Roberts · filed 2014-01-22(a)(5)

The Supreme Court therefore properly granted that branch of Roberts’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him as time-barred.

On a limitations motion under CPLR 3211(a)(5), dismissal is proper when the defendant shows that the limitations period expired before commencement and the plaintiff raises no question of fact.

Elmakies v. Sunshine · filed 2014-01-29(a)(5)

The Sunshine defendants made a prima facie showing that the three-year statute of limitations for legal malpractice (see CPLR 214 [6]) expired before the action was commenced, and the plaintiffs failed to raise a question of fact in opposition (see Hadda v Lissner & Lissner LLP, 99 AD3d 476, 477 [2012]).

Under CPLR 3211(a)(5), a counterclaim may be dismissed as time-barred when the movant makes a prima facie showing that the limitations period expired and the opposing party raises no factual question about an exception, tolling, or timely filing.

Butt v. Malik · filed 2014-02-13(a)(5)

The Supreme Court also properly, in effect, granted that branch of the plaintiffs motion which was pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the counterclaim to impose a constructive trust. The plaintiff established, prima facie, that this counterclaim was time-barred by showing that the applicable six-year statute of limitations began to run on January 11, 1996, the date of the allegedly wrongful transfer of the subject property, and that this action was not commenced until December 2011. ... In opposition, the defendants failed to raise a question of fact as to the applicability of an exception to the statute of limitations, or as to whether the statute of limitations was tolled or the counterclaim was interposed within the applicable limitations period (see Benjamin v Keyspan Corp., 104 AD3d 891, 892 [2013]).

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then raise a factual issue about tolling, inapplicability, or timely commencement.

New York City School Construction Authority v. Admiral Construction, LLC · filed 2014-02-26(a)(5)

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred. “In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period”

On a motion to dismiss as time-barred under section 3211(a)(5), the defendant must make a prima facie showing that the time to commence the action has expired.

Livingston v. En-Consultants, Inc. · filed 2014-03-05(a)(5)

On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796 [2013]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]).

A party seeking dismissal under CPLR 3211(a)(5) on statute of limitations grounds must first show that the time to commence the action has expired.

Wei v. Westside Women's Medical, Pavilion, P.C. · filed 2014-03-05(a)(5)

A party moving pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations must establish, prima facie, that the period in which to commence the action has expired (see QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 65 [2013]; Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]).

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

City of Yonkers v. 58A JVD Industries, Ltd. · filed 2014-03-05(a)(5)

“In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Matteawan On Main, Inc. v City of Beacon, 109 AD3d 590, 590 [2013]). ... Therefore, the appellant has met its prima facie burden of demonstrating that the time within which the City had to commence the action had expired.

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

Polluki Construction v. Capobianco · filed 2014-03-19(a)(5)

“In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired”

On a motion to dismiss a complaint as time-barred under CPLR 3211(a)(5), the movant has the threshold burden of showing, prima facie, that the complaint is time-barred.

Bennie v. Hudson Valley Center at Saint Francis, LLC · filed 2014-03-26(a)(5)

The Supreme Court should have granted Morgantini’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him as time-barred. Morgantini met his threshold burden of demonstrating, prima facie, that the complaint was time-barred.

CPLR 3211(a)(5) permits dismissal of a time-barred complaint when further discovery would not establish estoppel against a limitations defense.

Butcher v. Panos · filed 2014-03-26(a)(5)

The Supreme Court should have granted Vassar’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred. Contrary to the plaintiff’s contention, the motion was not properly denied on the ground that discovery might have revealed evidence that would estop Vassar from raising a statute of limitations defense.

CPLR 3211(e) provides that a defendant waives a statute of limitations defense by failing to assert it in the answer.

Eke v. City of New York · filed 2014-04-01(e)

The record supports the court’s determination that TBTA waived the statute of limitations defense by failing to assert it in its answer (see CPLR 3211 [e]).

Section 3211(a)(5) permits a statute of limitations defense in a motion to dismiss; failing to raise it there or in the answer waives it.

In re Nassau County Strip Search Cases · filed 2014-04-02(a)(5)

And defendants’ failure to include the subject affirmative defense either in a CPLR § 3211(a)(5) motion to dismiss or in their answer — instead broaching it post-concession and after the general damages trial — similarly constitutes a waiver.

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

Beizer v. Hirsch · filed 2014-04-09(a)(5)

Accordingly, the Supreme Court properly granted that branch of the motion of the Hirsch defendants which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them.

On a statute of limitations motion under section 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual issue about tolling or why the limitation does not apply.

Beizer v. Hirsch · filed 2014-04-09(a)(5)

“On a motion to dismiss a complaint pursuant to CFLR 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” (Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012] [internal quotation marks omitted]). “The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (id. at 769 [internal quotation marks omitted]).

CPLR 3211(a)(5) permits dismissal when the defendant establishes that the action was commenced after the applicable limitations period.

Hemmings v. Gapihan · filed 2014-04-16(a)(5)

The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint. The defendant established, prima facie, that the action was untimely in that it was not commenced within the one-year statute of limitations applicable to actions for defamation (see CPLR 215 [3]; 207; Wilson v Erra, 94 AD3d 756 [2012]).

A motion to dismiss on statute of limitations grounds may be denied without prejudice to renewal when more facts are needed to determine whether the claim is timely.

Newell v. Ellis Hospital · filed 2014-05-01(f)

Under the circumstances, we must deny defendants’ motions to dismiss based on statute of limitations grounds, without prejudice to renewal when further factual information is available (see CPLR 3211 [f]).

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

Kolb v. Rabinowitz · filed 2014-05-28(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 Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 [2008]).

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

Hollowell v. Decaro · filed 2014-06-11(a)(5)

The Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

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

Grynberg v. Giffen · filed 2014-07-02(a)(5)

Accordingly, since the instant action was commenced in May 2012, more than three years after the latest possible date that the plaintiffs were put on notice of the defendants’ allegedly unlawful activities (i.e., July 31, 2007), the Supreme Court properly directed the dismissal of the complaint pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations.

On a CPLR 3211(a)(5) limitations motion, the defendant bears the initial burden of showing that the time to commence the action has expired.

J.A. Lee Electric, Inc. v. City of New York · filed 2014-07-09(a)(5)

Accordingly, the defendant failed to satisfy its initial burden of demonstrating that the time within which the plaintiff was required to commence the action had expired.

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

Lake v. New York Hosp. Med. Ctr. of Queens · filed 2014-07-23(a)(5)

Since this action was commenced after the expiration of the statute of limitations, the Supreme Court properly granted those branches of the defendants’ separate motions which were pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against each of them (see CPLR 214 [2], [5]; 214-a).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a triable issue about tolling or another reason the period does not apply.

Kitty Jie Yuan v. 2368 West 12th Street, LLC · filed 2014-07-09(a)(5)

On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired (see Beizer v Hirsch, 116 AD3d 725 [2014]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]). The burden then shifts to the plaintiff to raise a triable issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Beizer v Hirsch, 116 AD3d 725 [2014]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d at 769).

A defendant seeking dismissal under CPLR 3211(a) for lack of standing must demonstrate entitlement to dismissal as a matter of law.

J.P. Morgan Chase Bank, N.A. v. Coleman · filed 2014-07-23(a)

The Supreme Court properly denied the appellant’s motion pursuant to CPLR 3211 (a), in effect, to dismiss the complaint insofar as asserted against her. Contrary to the appellant’s contention, she failed to demonstrate, as a matter of law, that she was entitled to the dismissal of the complaint insofar as asserted against her on the ground that the plaintiff lacked standing (see HSBC Mtge. Corp. [USA] v MacPherson, 89 AD3d 1061, 1062 [2011]; GECMC 2007-C1 Ditmars Lodging, LLC v Mohola, LLC, 84 AD3d 1311, 1312 [2011]).

Section 3211(a)(5) permits dismissal of a negligence claim against a newly added defendant when the claim is time-barred.

Avila v. Distinctive Development Co. · filed 2014-08-06(a)(5)

The Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against Schneebaum. The defendants demonstrated that the cause of action insofar as asserted against Schneebaum to recover damages for negligence was time-barred (see CPLR 3211 [a] [5]).

Section 3211(a)(5) permits dismissal as time-barred when the defendant establishes that the limitations period expired and the plaintiff fails to raise a factual question about equitable estoppel.

Saretto v. Panos · filed 2014-08-27(a)(5)

The Supreme Court should have granted Morgantini’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against him as time-barred. In support of his motion, Morgantini established, prima facie, that the action was commenced after the expiration of the applicable 2V2-year limitations period. Contrary to the plaintiffs contention, she failed to raise a question of fact as to whether the doctrine of equitable estoppel barred Morgantini from asserting the affirmative defense of the statute of limitations.

Section 3211(a)(5) permits dismissal as time-barred when the movant establishes, prima facie, that the action began after the applicable limitations period expired.

Bennett v. Panos · filed 2014-08-27(a)(5)

The Supreme Court should have granted Morgantini's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred. In support of his motion, Morgantini established, prima facie, that the action was commenced after the expiration of the applicable 2½-year limitations period.

CPLR 3211(a) permits dismissal of claims against John Doe defendants who were not identified and served before the applicable limitations periods expired.

Lepore v. Town of Greenburgh · filed 2014-09-10(a)

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case.

Section 3211(a)(5) requires a defendant seeking dismissal as time-barred to make a prima facie showing that the time to sue has expired.

Gould v. Decolator · filed 2014-10-15(a)(5)

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, a defendant must make a prima facie showing that the time in which to sue has expired (see Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780 [2013]; House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d 848 [2013]; Swift v New York Med. Coll., 25 AD3d 686 [2006]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a factual question about timeliness, tolling, or an exception.

Tsafatinos v. Law Office of Sanford F. Young, P.C. · filed 2014-10-22(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired (see Bullfrog, LLC v Nolan, 102 AD3d 719, 719 [2013]). Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period (see id.).

Once a defendant makes a prima facie showing that a claim is time-barred on a CPLR 3211(a)(5) motion, the plaintiff must raise a question of fact about tolling or another reason the limitations period does not apply.

Ceglio v. BAB Nuclear Radiology, P.C. · filed 2014-09-24(a)(5)

Thus, the burden shifted to the plaintiffs to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable (see Peykarian v Yin Chu Chien, 109 AD3d at 807).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the applicable limitations period expired.

Griffin v. Perrotti · filed 2014-10-29(a)(5)

Here, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it was barred by the statute of limitations. The defendant failed to establish, prima facie, that he was acting in the course of his employment at the time of the collision such that he is entitled to indemnification from Metro-North (see Matter of Carreras v McGuire, 87 AD2d 790 [1982]; Albano v Hawkins, 82 AD2d at 872; Fitzgerald v Lyons, 39 AD2d 473 [1972]).

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual issue about tolling or another reason the limitation does not apply.

Ross v. Jamaica Hospital Medical Center · filed 2014-11-05(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. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable”

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

Sutherland v. New York State Department of Environmental Conservation · filed 2014-11-12(a)(5)

Consequently, this proceeding/ action was time-barred when the petitioner commenced it on March 31, 2011, and the Supreme Court erred, upon reargument, in vacating a prior determination and thereupon denying those branches of the appellants’ motion which were pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the first cause of action, which was for declaratory relief, and the second cause of action, which was for a statutory award of an attorney’s fee and costs pursuant to CPLR article 86.

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.

Schwartz v. Leaf, Salzman, Manganelli, Pfiel, & Tendler, LLP · filed 2014-12-17(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, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978 [2014]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]).

A CPLR 3211(a)(5) motion supports dismissal when defendants establish prima facie that the claims are time-barred.

Mosab Construction Corp. v. Prospect Park Yeshiva, Inc. · filed 2015-01-21(a)(5)

In their motion, inter alia, to dismiss the complaint, the defendants established, prima facie, that the breach of contract cause of action was time-barred since it was not interposed within six years after its accrual in accordance with the statute of limitations set forth in CPLR 213 (2) (see Paonessa v C & L Bldr./Dev., Inc., 50 AD3d 1334, 1335 [2008]; see also Phillips Constr. Co. v City of New York, 61 NY2d 949, 951 [1984]).

A defendant moving to dismiss on statute-of-limitations grounds bears the initial burden of showing, prima facie, that the time to commence the action has expired.

Papa v. Fairfield on the Green · filed 2014-12-24(a)(5)

In moving to dismiss a complaint pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired.

On a motion to dismiss an Article 78 petition as time-barred, the respondent must establish that the petitioner received notice of the final administrative determination more than four months before commencing the proceeding.

COVINGTON, RONNIE v. FISCHER, BRIAN · filed 2015-02-06(a)(5)

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 final administrative determination” (Matter of Jackson v Fischer, 67 AD3d 1207, 1208; see Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834), and respondent failed to meet his burden of establishing that petitioner received such notice more than four months before commencing the instant proceeding (see Jackson, 67 AD3d at 1208; Matter of Chrysler v Goord, 49 AD3d 1342, 1343).

On a motion to dismiss an article 78 petition as time-barred under CPLR 3211(a)(5), the respondent must establish that the petitioner received notice of the final administrative determination more than four months before commencing the proceeding.

Covington v. Fischer · filed 2015-02-06(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 final administrative determination” (Matter of Jackson v Fischer, 67 AD3d 1207, 1208 [2009]; see 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 the instant proceeding (see Jackson, 67 AD3d at 1208; Matter of Chrysler v Goord, 49 AD3d 1342, 1343 [2008]).

On a motion to dismiss as time-barred, the moving party must first establish that the time to commence the action has expired.

Ferdico v. Pabone · filed 2015-02-11(a)(5)

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it was barred by the applicable statute of limitations, the moving party must establish, prima facie, that the time in which to commence the action so as to interpose that cause of action has expired (see Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]; LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007]).

On a statute of limitations motion under CPLR 3211 (a) (5), the defendant must first establish that the time to commence the action has expired.

Coleman v. Wells Fargo & Co. · filed 2015-02-11(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 (see Beizer v Hirsch, 116 AD3d 725 [2014]; Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]).

On a CPLR 3211 motion to dismiss, the court accepts the complaint’s allegations as true and draws reasonable inferences for the pleader; a defendant asserting a statute of limitations defense bears the initial burden of showing that the time to sue has expired.

Loeuis v. Grushin · filed 2015-03-11(a)

“On a motion to dismiss pursuant to CPLR 3211, the court must take the allegations in the complaint as true and resolve all reasonable inferences in favor of the pleader. A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired” ... The defendants failed to meet that burden.

On a limitations-based motion to dismiss, the defendant must initially show that the time to sue has expired; a factual question about tolling can prevent dismissal.

Beroza v. Sallah Law Firm, P.C. · filed 2015-03-11(a)(5)

“On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” ... Accordingly, the Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

To obtain dismissal under § 3211(a)(5) based on the statute of limitations, a defendant must first show, prima facie, that the time to commence the action has expired.

Bailey v. Peerstate Equity Fund, L.P. · filed 2015-03-11(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 demonstrating, prima facie, that the time within which to commence the action has expired.

On a statute of limitations motion under Section 3211(a)(5), the defendant must make a prima facie showing that the time to commence the action has expired.

Alizio v. Ruskin Moscou Faltischek, P.C. · filed 2015-03-11(a)(5)

The defendant met its prima facie burden by establishing that the statute of limitations expired on April 20, 2013, three years after the consents were executed by the plaintiff, the defendant, and new counsel.

On a CPLR 3211(a)(5) motion based on the statute of limitations, the defendant must show that the time to commence the action expired, and the court accepts the plaintiff’s factual allegations as true.

U.S. Nonwovens Corp. v. Pack Line Corp. · filed 2015-03-12(a)(5)

Accepting plaintiff’s allegation that installation was not completed until August 2010 as true, as the court must do, Nus-park has not met its burden of demonstrating that the time within which to commence the action expired before the action was commenced in May 2014. Although Nuspark may ultimately prevail on this defense, it has not demonstrated entitlement to dismissal under CPLR 3211 (a) (5) on this pre-answer motion.

Section 3211(a)(5) requires the court to read a plaintiff’s submissions favorably when deciding a motion to dismiss on limitations grounds.

Derrick v. American International Group, Inc. · filed 2015-03-19(a)(5)

According plaintiffs submissions “their most favorable intendment” for purposes of defendants’ CPLR 3211 (a) (5) motion to dismiss (Arrington v New York Times Co., 55 NY2d 433, 442 [1982], cert denied 459 US 1146 [1983]), her claims under the New York State and City Human Rights Laws, governed by a three-year limitations period, are timely in the present procedural posture (see CPLR 214 [2]; Administrative Code of City of NY § 8-502 [d]; Murphy v American Home Prods. Corp., 58 NY2d 293, 307 [1983]).

CPLR 3211(a)(5) permits dismissal of a complaint barred by an enforceable contractual limitations period.

State of Narrow Fabric, Inc. v. UNIFI, Inc. · filed 2015-03-18(a)(5)

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

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then raise a factual issue about tolling or another reason the period does not apply.

Malast v. Civil Serv. Empls. Assn., Inc., Local 830, AFSCME, AFL-CIO · filed 2015-05-06(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. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable”

On a motion to dismiss under CPLR 3211 (a) (5) as time-barred, defendants have the initial burden of establishing prima facie that the time to sue has expired.

Lyndaker v. Board of Education of West Canada Valley Central School District · filed 2015-06-19(a)(5)

Contrary to defendants’ contention, we conclude that the court properly denied that part of the motion seeking dismissal of the remaining three causes of action as time-barred pursuant to CPLR 3211 (a) (5). With respect to that part of their motion, defendants had “ ‘the initial burden of establishing prima facie that the time in which to sue has expired’ ” (Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355 [2011]).

A court may direct a hearing on a CPLR 3211(a)(5) motion to dismiss when the evidence conflicts on whether a limitations toll applies.

HECKL, RACHEL v. WALSH, DANIEL M. · filed 2015-07-02(a)(5)

Contrary to defendant’s contention, Supreme Court properly directed a hearing pursuant to CPLR 208 on its motion to dismiss pursuant to CPLR 3211 (a) (5) rather than summarily deciding the motion in its favor. The record contains conflicting evidence with respect to whether Aida Corey was “unable to protect [her] legal rights because of an over-all inability to function in society” during the relevant period following the accrual of the causes of action (McCarthy v Volkswagen of Am., 55 NY2d 543, 548; see Kelly v Solvay Union Free Sch. Dist., 116 AD2d 1006, 1006).

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.

LYNDAKER, MARLIN v. BD OF ED OF W CANADA VALLEY CENTRA · filed 2015-06-19(a)(5)

With respect to that part of their motion, defendants had “ ‘the initial burden of establishing prima facie that the time in which to sue has expired’ ” (Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355).

A court need not delay a CPLR 3211(a)(5) dismissal for discovery when the facts the plaintiff hopes to uncover would not establish estoppel against a statute of limitations defense.

Piccoli v. Panos · filed 2015-07-08(a)(5)

The Supreme Court should have granted that branch of Vassar’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the causes of action alleging medical malpractice insofar as asserted against it. Contrary to the plaintiffs contention, with respect to the medical malpractice causes of action, the motion was not properly denied on the ground that discovery might have revealed evidence that would estop Vassar from raising a statute of limitations defense.

Section 3211(e) allows a defendant to preserve a statute of limitations defense in its answer and seek relief later; the defense is waived if raised in neither the answer nor a timely motion.

Wan Li Situ v. MTA Bus Co. · filed 2015-07-15(e)

CPLR 3211 (e) provides that the defendant may make the motion to dismiss before its answer is required to be served, or may include the defense in its answer and seek relief later. When the defendant does neither, the defense is waived.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), once the defendant makes a prima facie showing, the plaintiff must raise a question of fact about tolling, the statute’s applicability, or timely commencement.

Marrero v. Sosinsky · filed 2015-07-22(a)(5)

Thus, the burden shifted to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations period (see Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358 [2011]; Rakusin v Miano, 84 AD3d 1051, 1052 [2011]).

On a statute of limitations motion, once the defendant shows that the time to sue has expired, the plaintiff must raise a factual issue about tolling or why the limitation does not apply.

Williams-Guillaume v. Bank of America, N.A. · filed 2015-07-29(a)(5)

The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable”

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

CRC Litigation Trust v. Marcum, LLP · filed 2015-10-28(a)(5)

When moving to dismiss a cause of action as time-barred pursuant to CPLR 3211 (a) (5), a defendant must establish, prima facie, that the time in which to sue has expired (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792 [2015]; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 734-735 [2015]).

On a CPLR 3211(a)(5) motion based on the statute of limitations, the defendant bears the initial burden of showing that the time to sue has expired.

Weight v. Day · filed 2015-12-09(a)(5)

Thus, the defendants failed to meet their initial burden of demonstrating that those causes of action were time-barred. Accordingly, the court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss those causes of action.

On a motion to dismiss under CPLR 3211(a)(5) on statute of limitations grounds, the defendant must initially show that the time to commence the action has expired.

Doukas v. Ballard · filed 2016-01-27(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 (see Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796 [2013]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769 [2012]).

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

Cannariato v. Cannariato · filed 2016-02-03(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”

A defendant waives a statute of limitations defense by failing to raise it in the answer or a preanswer motion to dismiss.

Estate of Del Terzo v. 33 Fifth Avenue Owners Corp. · filed 2016-02-11(e)

Defendant waived that defense by failing to raise it in its answer or in a preanswer motion to dismiss the complaint ( see CPLR 3211[e]; Marine Midland Bank v Worldwide Indus. Corp. , 307 AD2d 221, 222 [1st Dept 2003]).

A statute of limitations defense is generally waived unless raised by pre-answer motion or in an answer; a timely amended answer may preserve it.

Moezinia v. Ashkenazi · filed 2016-02-24(e)

Generally, a defense based upon the statute of limitations is waived unless raised by pre-answer motion or in the defendant’s answer {see CPLR 3211 [e]).

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.

Barry v. Cadman Towers, Inc. · filed 2016-02-24(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the complaint is barred by the applicable statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.

On a statute of limitations motion under CPLR 3211(a)(5), the defendant must make a prima facie showing that the claim is untimely; the plaintiff must then raise a question of fact.

Oliveto Holdings, Inc. v. Denis W. Light, PLLC · filed 2016-03-23(a)(5)

The defendants demonstrated, prima facie, that the plaintiff’s legal malpractice cause of action accrued more than three years prior to the time this action was commenced. In opposition, the plaintiff failed to raise a question of fact ... Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it was barred by the applicable statute of limitations.

Under CPLR 3211(a)(5), a defendant seeking dismissal on statute of limitations grounds has the initial burden of showing when the claim accrued and that the time to sue expired.

WENDOVER FINANCIAL SERVICES v. RIDGEWAY, JO-ANN · filed 2016-03-25(a)(5)

Contrary to plaintiff’s contention, Supreme Court properly granted the motion of defendant-respondent (defendant) pursuant to CPLR 3211 (a) (5) and dismissed the complaint against her as barred by ... the six-year statute of limitations (see CPLR 213 [4]). “[D]efendant had ‘the initial burden of establishing prima facie that the time in which to sue ha[d] expired’ . . . , and thus was required ‘to establish . . . when the plaintiff’s cause of action accrued’ ” (Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355).

Under CPLR 3211 (a) (5), a defendant seeking dismissal on statute of limitations grounds must first show that the time to sue has expired.

Geotech Enterprises, Inc. v. 181 Edgewater, LLC · filed 2016-03-30(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 J.A. Lee Elec., Inc. v City of New York, 119 AD3d 652, 653 [2014]; Sabadie v Burke, 47 AD3d 913, 914 [2008]; Swift v New York Med. Coll., 25 AD3d 686, 687 [2006]; Savarese v Shatz, 273 AD2d 219, 220 [2000]).

Under CPLR 3211(a)(5), once a defendant shows that the limitations period has expired, the plaintiff must raise a factual question about tolling, the period’s applicability, or timely commencement.

Stewart v. GDC Tower at Greystone · filed 2016-04-06(a)(5)

Only then does the burden shift to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period (see Reid v Incorporated Vil. of Floral Park, 107 AD3d 777, 778 [2013]; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359 [2011]).

On a motion to dismiss as time barred under CPLR 3211(a)(5), the defendant bears the initial burden of showing that the filing period expired.

Shah v. Exxis, Inc. · filed 2016-04-20(a)(5)

As the plaintiffs did not commence this action until April 2013, more than six years later, the defendants sustained their initial burden of proving that so much of the complaint as sought recovery of the $250,000 initial installment was untimely.

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

Quinn v. McCabe, Collins, McGeough & Fowler, LLP · filed 2016-04-27(a)(5)

“On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired.

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

Franklin v. Hafftka · filed 2016-06-15(a)(5)

In moving to dismiss a complaint pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a moving defendant must establish, prima facie, that the time within which to commence the action has expired (see Loiodice v BMW of N. Am., LLC, 125 AD3d 723, 724 [2015]).

A movant seeking dismissal of same-transaction counterclaims as time-barred under CPLR 3211(a)(5) must address the applicability of CPLR 203(d) to establish entitlement to dismissal.

Lewis, Brisbois, Bisgaard & Smith, LLP v. Law Firm of Howard Mann · filed 2016-07-13(a)(5)

Since the appellants’ motion did not address the applicability of CPLR 203 (d), the appellants did not establish their entitlement to dismissal pursuant to CPLR 3211 (a) (5).

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.

Lebedev v. Blavatnik · filed 2016-10-04(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” (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011]).

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

Pepenella v. Brumar Day Spa Corp. · filed 2016-10-19(a)(5)

Here, the defendant established, prima facie, that this action was not commenced against it until after the applicable statute of limitations had expired ... In opposition, the plaintiff failed to raise a question of fact that would warrant denial of the motion. ... Accordingly, the Supreme Court properly 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 motion to dismiss as time-barred, once the defendant shows that the action is untimely, the plaintiff must present admissible evidence showing timeliness or raising a question of fact.

U.S. Bank National Ass'n v. Martin · filed 2016-11-16(a)(5)

The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely (see id. at 611; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

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

Ahrorgulova v. Mann · filed 2016-11-23(a)(5)

We agree with Perl that the Supreme Court should have granted her motion pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint insofar as asserted against her as time-barred.

Section 3211(e) treats a statute of limitations defense omitted from an answer as waived.

Civil Service Employees Ass'n v. County of Nassau · filed 2016-11-30(e)

The County waived a defense based on the statute of limitations by not raising that defense in its answer (see CPLR 3211 [e]; Deutsche Bank Trust Co. Ams. v Cox, 110 AD3d 760, 762 [2013]).

On a motion to dismiss a legal malpractice claim as time-barred, once the defendant establishes that the limitations period elapsed, the plaintiff must raise a question of fact about whether continuous representation makes the action timely.

Aqua-Trol Corp. v. Wilentz, Goldman & Spitzer, P.A. · filed 2016-11-23(a)

The burden then shifted to the plaintiff to raise a question of fact, inter alia, as to whether the action was timely under the continuous representation doctrine.

A defendant seeking dismissal under CPLR 3211(a) for lack of standing must demonstrate entitlement to dismissal as a matter of law.

U.S. Bank National Ass'n v. Chanin · filed 2016-11-30(a)

Here, the defendants Nechama Chanin and Zalman Chanin (hereinafter together the defendants) failed to demonstrate, as a matter of law, that they were entitled to the dismissal of the amended complaint insofar as asserted against them on the ground that the plaintiff lacked standing (see J.P. Morgan Chase Bank, N.A. v Coleman, 119 AD3d 841, 842 [2014]; cf. Citimortgage, Inc. v Klein, 140 AD3d 913, 914-915 [2016]; Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899 [2016]). ... Accordingly, the Supreme Court erred in granting the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them.

CPLR 3211 does not support dismissal as time-barred when the record does not establish when the alleged conversion occurred.

Johnson v. Law Off. of Kenneth B. Schwartz · filed 2016-12-29

However, this cause of action is not subject to CPLR 3211 dismissal as time-barred, as there is no clear indication in the record when the supposed $100,000 escrow was released.

A defendant seeking dismissal under subsection (a)(5) on statute of limitations grounds must first make a prima facie showing that the applicable limitations period expired.

State of New York Workers' Compensation Board v. Wang · filed 2017-01-05(a)(5)

Dismissal may be warranted under CPLR 3211 (a) (5) where a defendant establishes, prima facie, that a cause of action is time-barred by the expiration of the applicable statute of limitations (see Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2016]; State of Narrow Fabric, Inc. v UNIFI, Inc., 126 AD3d 881, 882 [2015]; J.A. Lee Elec., Inc. v City of New York, 119 AD3d 652, 653 [2014]).

A party waives a statute of limitations argument against a claim when its motion to dismiss does not seek dismissal of that claim on that ground.

New York State Workers' Compensation Board v. Fuller & LaFiura, CPAs, P.C. · filed 2017-01-12(e)

However, inasmuch as Fuller's motion to dismiss did not seek dismissal of the fraud claim on statute of limitations grounds, this argument was waived (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; see also New York State Workers' Compensation Bd. v SGRisk, LLC, 116 AD3d at 1154-1155).

A party waives a statute of limitations defense by failing to raise it in an answer or a pre-answer motion to dismiss.

Matter of Astacio v. Bratton · filed 2017-01-19(e)

Respondents have waived the defense of the statute of limitations by failing to interpose it in their answer or in a pre-answer motion to dismiss (see CPLR 3211 [a] [5]; [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]; Matter of Johnson v Civilian Complaint Review Bd., 30 AD3d 201, 202 [1st Dept 2006]).

On a statute of limitations motion under CPLR 3211(a)(5), the defendant initially must show that the time to sue has expired, while the court accepts the complaint’s allegations as true and draws inferences for the plaintiff.

Girozentrale v. Tilton · filed 2017-02-23(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 considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.

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

Wells Fargo Bank, N.A. v. Eitani · filed 2017-02-08(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired ( see Ross v Jamaica Hosp. Med. Ctr., 122 AD3d 607, 608; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 768-769).

A motion under CPLR 3211(a)(5) to dismiss counterclaims as time-barred fails when the movant does not establish that the limitations period began early enough to expire.

Wasay v. Alvi · filed 2017-03-22(a)(5)

The plaintiff failed to establish that he directly and definitively repudiated the defendant’s alleged ownership interest in Sparklean prior to January 2013. Thus, the Supreme Court properly denied those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (a) (5) to dismiss the five subject counterclaims as time-barred (see CPLR 213 [1]; Zwarycz v Marnia Constr., Inc., 102 AD3d at 776; Morris v Gianelli, 71 AD3d at 967).

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

New York City School Construction Authority v. Ennead Architects LLP · filed 2017-03-28(a)(5)

On this CPLR 3211 (a) (5) motion, defendant did not meet its initial burden of “establishing, prima facie, that the time in which to sue has expired” (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011]).

A CPLR 3211(a)(5) motion to dismiss as time-barred must be denied when the plaintiff raises a question of fact about whether continuous representation tolled the limitations period.

Stein Industries, Inc. v. Certilman Balin Adler & Hyman, LLP · filed 2017-04-05(a)(5)

In opposition, however, the plaintiffs raised a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. ... Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the first and second causes of action.

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

3rd & 6th, LLC v. Berg · filed 2017-04-12(a)(5)

On a motion to dismiss a complaint as time-barred, a 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 movant must first show that the filing period expired; the opposing party can then raise a factual question about tolling.

Murray v. Charap · filed 2017-05-03(a)(5)

Therefore, the plaintiffs raised a question of fact as to whether their claims with respect to treatment prior to May 22, 2001, were barred by the statute of limitations. Accordingly, upon reargument, the Supreme Court should have adhered to its original determination in the order dated August 12, 2013, denying that branch of the defendant’s motion which was to dismiss, as time-barred, the causes of action to recover damages for medical malpractice and lack of informed consent arising from treatment rendered prior to May 22, 2001.

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

Elia v. Perla · filed 2017-05-17(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 demonstrating, prima facie, that the time within which to commence the action has expired” (Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2016]; see Campone v Panos, 142 AD3d 1126, 1127 [2016]).

A CPLR 3211 motion may dismiss a fraud claim as untimely when the complaint’s allegations, accepted as true, establish inquiry notice.

MBI International Holdings Inc. v. Barclays Bank PLC · filed 2017-06-01(a)(5)

Plaintiffs’ own allegations, which we must accept as true on a motion to dismiss, establish that plaintiffs were apprised of facts from which fraud could have been reasonably inferred by at least 2008.

On a motion to dismiss under CPLR 3211(a)(5), the defendant bears the initial burden of establishing that the limitations period expired.

Wilson v. Exigence of Team Health · filed 2017-06-16(a)(5)

As noted above, defendant had the burden of establishing that the statute of limitations period had expired, and it could not refute that such period was extended by operation of law to October 13, 2015 (see generally Matter of Persing v Coughlin, 214 AD2d 145, 148-149 [1995]).

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

Leace v. Kohlroser · filed 2017-06-07(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 demonstrating, prima facie, that the time within which to commence the action has expired”

CPLR 3211 (a) (5) permits dismissal of a contract claim filed after the applicable six-year limitations period.

Fallati v. Concord Pools, Ltd. · filed 2017-06-22(a)(5)

... and a motion to dismiss pursuant to CPLR 3211 (a) (5) is properly granted where “an action upon a contractual obligation or liability, express or implied,” is not commenced within six years (CPLR 213 [2]).

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

Loscalzo v. 507-509 President Street Tenants Ass'n Housing Development Fund Corp. · filed 2017-08-09(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”

On a limitations motion under CPLR 3211(a)(5), the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual question about timeliness or an exception.

Celestin v. Simpson · filed 2017-08-16(a)(5)

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the moving defendant has the initial burden of establishing, prima facie, that the time in which to commence the action has expired (see Cannariato v Cannariato, 136 AD3d 627, 627 [2016]; Coleman v Wells Fargo & Co., 125 AD3d 716, 716 [2015]; Beizer v Hirsch, 116 AD3d 725, 725 [2014]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (see Cannariato v Cannariato, 136 AD3d at 627; Coleman v Wells Fargo & Co., 125 AD3d at 716; Beizer v Hirsch, 116 AD3d at 725).

On a motion to dismiss under § 3211(a)(5), the movant must first show that the time to sue has expired; the plaintiff must then raise a factual issue about tolling or another reason the time limit does not apply.

Craft EM CLO 2006-1, Ltd. v. Deutsche Bank AG · filed 2017-08-14(a)(5)

On a motion to dismiss pursuant to CPLR 3211(a)(5), the movant must establish, prima facie, that the time to commence an action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or otherwise inapplicable ( Wilson v Southampton Urgent Med. Care, P.C. , 112 AD3d 499 , 499-501 [1st Dept 2013]).

On a limitations motion under CPLR 3211(a)(5), the movant must make a prima facie showing that the time to commence the proceeding has expired.

Matter of Linder · filed 2017-09-20(a)(5)

Here, the appellant failed to establish, prima facie, that the time in which to commence the proceeding had expired. The evidence submitted in support of the motion demonstrated that there were questions of fact as to when, and if, the petitioner’s claim for attorney’s fees accrued. Accordingly, the Surrogate’s Court properly denied that branch of the appellant’s motion which was to dismiss the petition pursuant to CPLR 3211 (a) (5).

CPLR 3211(a)(5) permits dismissal when an action is barred by an enforceable contractual limitations period.

Watkins v. Allstate Ins. Co. · filed 2017-09-29(a)(5)

Consequently, the Civil Court properly granted defendants' motion to dismiss the complaint on the ground that the action is time-barred.

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

Cataldo v. Herrmann · filed 2017-10-04(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” (Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 [2008]; see Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]; Sabadie v Burke, 47 AD3d 913, 913 [2008]).

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.

Franqui v. Korol · filed 2017-10-11(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 Murray v Charap, 150 AD3d 752 [2017]; Wei Wei v Westside Women’s Med. Pavilion, P.C., 115 AD3d 662, 663 [2014]; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 781 [2013]; Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]).

On a motion to dismiss as time-barred, the defendant must first show that the time to sue expired; the burden then shifts to the plaintiff to show timeliness or raise a factual issue.

Wells Fargo Bank, N.A. v. Burke · filed 2017-11-01(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 Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 979 [2014]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017 [2010]). Once this showing has been made, the burden shifts to 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” (Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611 [2009]; see Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844 [2014]).

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; the burden then shifts to the plaintiff to show timely filing or a possible exception.

Sullivan v. Keyspan Corp. · filed 2017-11-08(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’ ” (Benjamin v Keyspan Corp., 104 AD3d 891, 892 [2013], quoting LaRocca v DeRicco, 39 AD3d 486, 486-487 [2007]). 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 (see Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2007]), or that the cause of action was interposed within the applicable statute of limitations (see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 90 AD3d 821, 822 [2011]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must establish untimeliness prima facie; the plaintiff may oppose by raising a factual question about tolling, inapplicability, or timely commencement.

Campbell v. Bank of America, N.A. · filed 2017-11-15(a)(5)

The Supreme Court properly granted that branch of the cross motion of HSBC and Hazard pursuant to CPLR 3211 (a) (5) which was, in effect, to dismiss the sixth cause of action of the amended complaint as time-barred. ... Here, HSBC and Hazard established, prima facie, that two trusts for the benefit of the plaintiff Heather B. Byrne were terminated in 1986 and 2006, respectively. ... In opposition, Byrne failed to raise a question of fact as to whether the six-year statute of limitations was tolled or otherwise inapplicable, or whether the action was actually commenced within the applicable six-year limitations period (see Franklin v Hafftka, 140 AD3d 922, 924 [2016]).

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

New York State Workers' Compensation Bd. v. Compensation Risk Mgrs., LLC · filed 2017-12-14(a)(5)

Dismissal is warranted under CPLR 3211 (a) (5) where the movant establishes that a cause of action may not be maintained due to the expiration of the statute of limitations.

On a motion to dismiss as time-barred, the defendant must first establish that the time to sue has expired; the plaintiff must then raise a question of fact about tolling or inapplicability.

Huss v. Rucci Oil Co., Inc. · filed 2017-12-22(a)(5)

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing that the time in which to commence the action has expired ( see Williams-Guillaume v Bank of Am., N.A. , 130 AD3d 1016 , 1016-1017 [2015]; Baptiste v Harding-Marin , 88 AD3d 752 , 753 [2011]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable ( see Williams-Guillaume v Bank of Am., N.A. , 130 AD3d at 1016-1017; Baptiste v Harding-Marin , 88 AD3d at 753).

CPLR 3211(a)(1) and (5) permit dismissal when documentary evidence conclusively establishes that an action was commenced after an unambiguous contractual limitations period expired.

Hohwald v. Farm Family Casualty Insurance Co. · filed 2017-11-29(a)(1), (a)(5)

Here, the insurance policy contained a clear and unambiguous provision that provided for a limitations period of two years from the date of the occurrence causing the loss or damage in which to commence an action against Farm Family. The documentary evidence conclusively established that this action was time-barred because it was commenced subsequent to the expiration of the two-year limitations period contained in the insurance policy. ... Accordingly, the Supreme Court properly granted Farm Family’s motion pursuant to CPLR 3211 (a) to dismiss the complaint.

CPLR 3211(a)(1) permits dismissal when documentary evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

MLB Construction Services, LLC v. Lake Avenue Plaza, LLC · filed 2017-12-07(a)(1)

A motion to dismiss under CPLR 3211 (a) (1) may be granted where “the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Jenkins v Jenkins, 145 AD3d 1231, 1234 [2016]).

Affidavits are not documentary evidence that a defendant may rely on to obtain dismissal under Section 3211(a)(1).

New York State Workers' Compensation Bd. v. Compensation Risk Mgrs., LLC · filed 2017-12-14(a)(1)

But affidavits are not documentary evidence upon which a proponent of dismissal under CPLR 3211 (a) (1) may rely ( see Lopes v Bain , 82 AD3d 1553 , 1554 [3d Dept 2011]; Crepin 59 AD3d at 838).

CPLR 3211(a)(1) permits dismissal only when documentary evidence utterly refutes the plaintiff’s factual allegations and conclusively establishes a defense as a matter of law.

533 Park Avenue Realty, LLC v. Park Avenue Building & Roofing Supplies, LLC · filed 2017-12-20(a)(1)

Relief pursuant CPLR 3211 (a) (1) requires documentary evidence which utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588 [2014]).

Section 3211(a)(5) permits dismissal when a cause of action cannot be maintained because of a statute of limitations and requires the court to accept complaint allegations as true while giving the plaintiff every favorable inference.

U.S. Bank N.A. v. Gordon · filed 2018-02-28(a)(5)

In resolving a motion to dismiss pursuant to CPLR 3211(a)(5), the court must 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; Ford v Phillips, 121 AD3d 1232, 1234; 6D Farm Corp. v Carr, 63 AD3d 903, 905; see also Leon v Martinez, 84 NY2d 83, 87-88).

Section 3211(e) requires a statute of limitations defense to be raised in an answer or pre-answer motion to dismiss or it is waived.

Lotz v. Westbourne Apts., Inc. · filed 2018-03-14(e)

To the extent that the building defendants relied on the statute of limitations, they waived that defense by failing to assert it in their answer or in a pre-answer motion to dismiss ( see CPLR 3211[e]; MidFirst Bank v Ajala , 146 AD3d 875; Fade v Pugliani/Fade , 8 AD3d 612, 614).

CPLR 3211(a)(5) permits dismissal when an action is time-barred and requires the defendant to show prima facie that the limitations period expired.

Caiola v. Fenestra Am., LLC · filed 2018-03-14(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" ( Coleman v Wells Fargo & Co. , 125 AD3d 716, 716; see Beizer v Hirsch , 116 AD3d 725, 725). If the moving defendant does so, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period ( see Celestin v Simpson , 153 AD3d 656, 657; Coleman v Wells Fargo & Co ., 125 AD3d at 716).

CPLR 3211(a)(5) requires the defendant to first show that the limitations period expired, after which the plaintiff must show a possible toll or exception.

Roubeni v. Dechert, LLP · filed 2018-03-21(a)(5)

In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired.

CPLR 3211(a)(5) allows a defendant to seek dismissal of a claim as time-barred, with the defendant initially bearing the burden to show that the time to sue has expired.

U.S. Bank N.A. v. Joseph · filed 2018-03-28(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 ... Accordingly, the Supreme Court should have granted the appellants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

CPLR 3211(a)(5) permits dismissal when a cause of action is barred by the statute of limitations, after the defendant makes a prima facie showing that the time to sue has expired and the plaintiff fails to show tolling or timely commencement.

Silver v. Silver · filed 2018-06-20(a)(5)

Here, the defendants established, prima facie, that the plaintiff's causes of action to recover damages for false imprisonment, defamation, and intentional infliction of emotional distress were time-barred by the one-year statute of limitations for intentional torts ( see CPLR 215[3]; Walker v Estate of Lorch, 136 AD3d 805, 807; Melious v Besignano, 125 AD3d 727, 728; Bellissimo v Mitchell, 122 AD3d 560, 561). ... Accordingly, the Supreme Court properly determined that the causes of action to recover damages for false imprisonment, defamation, and intentional infliction of emotional distress were time-barred pursuant to CPLR 3211(a)(5).

CPLR 3211(a)(5) permits dismissal of a cause of action as barred by the applicable statute of limitations and places the initial prima facie burden on the defendant.

King Tower Realty Corp. v. G & G Funding Corp. · filed 2018-07-05(a)(5)

" On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired.

Section 3211(a)(5) places the initial burden on the defendant to show that the time to commence the action has expired, then shifts the burden to the plaintiff to raise a factual question about tolling, inapplicability, or timely commencement.

Pugni v. Giannini · filed 2018-07-25(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a cause of action as time-barred, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired, and if the defendant satisfies that burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the action was actually commenced within the applicable statute of limitations ( see Stewart v GDC Tower at Greystone, 138 AD3d 729).