N.Y. C.P.L.R. § 3211

CPLR 3211(a)(5) requires courts to accept the complaint's allegations as true and give the plaintiff every favorable inference when deciding a statute of limitations dismissal motion.

Bank of N.Y. Mellon v. Celestin · filed 2018-08-22(a)(5)

In resolving a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the statute of limitations, 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 U.S. Bank N.A. v Gordon, 158 AD3d 832, 834; Amrusi v Nwaukoni, 155 AD3d 814, 816).

Section 3211(a)(5) permits dismissal when a cause of action is barred by the statute of limitations and places the initial prima facie burden on the defendant to show that the time to sue has expired.

U.S. Bank N.A. v. Salem · filed 2018-09-12(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 U.S. Bank N.A. v Joseph , 159 AD3d 968, 969; Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669).

Section 3211(a)(5) permits dismissal when a cause of action is barred by the statute of limitations and allocates the initial burden to the defendant, then shifts it to the plaintiff to show tolling or inapplicability.

Schrull v. Weis · filed 2018-11-14(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. 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" ( Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789; see Stewart v GDC Tower at Greystone, 138 AD3d 729, 729-730).

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

Peckham v. Island Park Union Free Sch. Dist. · filed 2018-12-05(a)(5)

The defendant established that this action was time-barred, as the last alleged adverse employment action occurred more than a year prior to the commencement of the action ( see CPLR 3211[a][5]; Education Law § 3813[2-b]; Matter of Amorosi v South Colonie Ind. Cent. School Dist. , 9 NY3d 367; Matter of Lozada v Elmont Hook & Ladder Co. No. 1 , 151 AD3d 860).

Section 3211(e) provides that a statute of limitations defense is waived if it is not raised in a pre-answer motion to dismiss or in the responsive pleading.

Dawes v. State of New York · filed 2018-12-06(e)

A statute of limitations defense is waived if it is not raised in a pre-answer motion to dismiss or in the responsive pleading ( see CPLR 3211 [e]).

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

O'Reilly v. Klar · filed 2018-12-19(a)(5)

The defendant moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that it was time-barred. The Supreme Court denied the motion. We reverse. ... 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.

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

US Bank Trust, N.A. v. Williams · filed 2019-01-30(a)(5)

Since HSBC was not the holder of the note and mortgage at the time of the commencement of the prior mortgage foreclosure action, it lacked the authority to accelerate the debt through the complaint in that action ( see Milone v US Bank National Association , 164 AD3d 145; U.S. Bank N.A. v Gordon , 158 AD3d at 836; Wells Fargo Bank, N.A. v Burke , 94 AD3d at 983; EMC Mtge. Corp. v Smith , 18 AD3d at 603). Thus, the defendant failed to meet her initial burden of demonstrating, prima facie, that this action was untimely ( see U.S. Bank N.A. v Gordon , 158 AD3d at 835-836; Campone v Panos , 142 AD3d 1126, 1127).

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

MP v. Davidsohn · filed 2019-02-13(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. 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"

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

U.S. Bank Natl. Assn. v. Sopp · filed 2019-03-06(a)(5)

Accordingly, we agree with the Supreme Court's denial of the appellant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her.

CPLR 3211(a)(5) permits dismissal when a claim is barred by the statute of limitations, and the defendant initially bears the prima facie burden of showing that the commencement period expired.

North Shore Invs. Realty Group, LLC v. Traina · filed 2019-03-06(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" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see Campone v Panos , 142 AD3d 1126, 1127; Stewart v GDC Tower at Greystone , 138 AD3d 729).

CPLR 3211(a)(5) permits dismissal of a complaint as barred by the statute of limitations and sets the parties' burdens on that motion.

Bank of N.Y. Mellon v. Dieudonne · filed 2019-03-13(a)(5)

Where, as here, a defendant satisfies the initial burden of proof on a motion pursuant to CPLR 3211(a)(5), "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 plaintiff actually commenced the action within the applicable limitations period" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952; see Stewart v GDC Tower at Greystone , 138 AD3d 729, 730).

CPLR 3211(a)(5) requires a defendant seeking dismissal based on an expired statute of limitations to establish prima facie that the time to commence the action has expired, while CPLR 3211(a)(4) permits dismissal when another action is pending.

MLB Sub I, LLC v. Grimes · filed 2019-03-20(a)(5), (a)(4)

"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" ( Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197). ... Contrary to the defendant's contention, the commencement of the 2007 action did not cause the statute of limitations to begin to run. ... Accordingly, service of the 2007 complaint did not constitute a valid exercise of the option to accelerate the debt, and the statute of limitations did not begin to run at that time ( see Wells Fargo Bank, N.A. v Burke , 94 AD3d at 983; EMC Mtge. Corp. v Suarez , 49 AD3d at 593). ... The defendant argues that dismissal of the complaint was warranted pursuant to CPLR 3211(a)(4) and RPAPL 1301(3) because the 2009 action was pending at the time MLB commenced this action. ... Thus, the defendant was not entitled to dismissal of the complaint insofar as asserted against it on the ground that a prior action was pending ( see Old Republic Natl. Tit. Ins. Co. v Conlin , 129 AD3d at 805; see Credit-Based Asset Servicing & Securitization v Grimmer , 299 AD2d at 887-888). Accordingly, we agree with the Supreme Court's determination denying the defendant's cross motion to dismiss the complaint insofar as asserted against it.

CPLR 3211(a)(5) permits dismissal when the statute of limitations has expired and allocates the initial burden to the defendant, after which the burden shifts to the plaintiff.

Bank of N.Y. Mellon v. Maldonado · filed 2019-03-27(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" ( Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

CPLR 3211(a)(5) requires a defendant moving to dismiss as time-barred to establish prima facie that the limitations period has expired, after which the plaintiff must raise a question of fact concerning tolling, inapplicability, or timely commencement.

NM v. Estate of Edmund C. Grainger · filed 2019-04-24(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" ( Franklin v Hafftka , 140 AD3d 922, 924; see Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197).

Section 3211(a)(5) requires the defendant to show prima facie that the limitations period expired, after which the plaintiff must raise a factual issue showing the action was timely.

MTGLQ Invs., LP v. Wozencraft · filed 2019-05-30(a)(5)

In moving to dismiss an action as barred by the statute of limitations (CPLR 3211[a][5]), the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired ( Norddeutsche Landesbank Girozentrale v Tilton , 149 AD3d 152, 158 [1st Dept 2017]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is inapplicable or whether the action was commenced within the statutory period ( Wilson v Southampton Urgent Med. Care, P.C. , 112 AD3d 499, 500 [1st Dept 2013]), and the plaintiff must "aver evidentiary facts establishing that the action was timely or [] raise an issue of fact as to whether the action was timely" ( Lessoff v 28 Ct. St. Assoc., LLC , 58 AD3d 610, 611 [2d Dept 2009]).

Section 3211(a)(5) permits dismissal of claims barred by the statute of limitations, with the moving party initially required to show prima facie that the limitations period expired.

Chaplin v. Tompkins · filed 2019-06-07(a)(5)

In moving to dismiss the complaint on statute of limitations grounds, each defendant had "the initial burden of establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter alia, when the plaintiff[s'] cause of action accrued" ( Larkin v Rochester Hous. Auth. , 81 AD3d 1354, 1355 [4th Dept 2011] [internal quotation marks omitted]).

Section 3211(a)(5) places the initial burden on a defendant to make a prima facie showing that the time to sue has expired, then shifts the burden to the plaintiff.

Wilmington Trust, N.A. v. Dawson · filed 2019-07-10(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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA , 117 AD3d 978, 979).

CPLR 3211(a)(5) permits dismissal when the applicable statute of limitations has expired and places the initial prima facie burden on the defendant.

Jacobson Dev. Group, LLC v. Yews, Inc. · filed 2019-07-31(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" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197).

CPLR 3211(a)(5) allows a defendant to seek dismissal when the cause of action is barred by the statute of limitations.

Deutsche Bank Natl. Trust Co. v. Ahmed · filed 2019-07-31(a)(5)

Therefore, Ahmed failed to meet her initial burden of showing, prima facie, that the time in which to commence an action with respect to the entire debt has expired, and her motion should have been denied on that ground.

CPLR 3211(a)(5) requires a defendant moving to dismiss as time-barred to establish prima facie that the time to commence the action has expired.

WestVue NPL Trust II v. Gokey · filed 2019-09-18(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"

Section 3211(a)(5) allows dismissal of a claim barred by the statute of limitations.

Ditech Fin., LLC v. Naidu · filed 2019-09-18(a)(5)

Accordingly, the appellant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred should have been granted, and those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the appellant and for an order of reference should have been denied as academic.

CPLR 3211(e) provides that a statute of limitations defense may be waived if it is not asserted in a responsive pleading or by motion before the responsive pleading is submitted.

Prand Corp. v. Gardiner · filed 2019-10-23(e)

The bar of the statute of limitations is an affirmative defense, which may be waived if not asserted in a responsive pleading or by motion prior to the submission of a responsive pleading ( see CPLR 3211[e]; 352 Legion Funding Assoc. v 348 Riverdale, LLC , 164 AD3d 551, 552-553).

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

21st Mtge. Corp. v. Balliraj · filed 2019-11-13(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" ( Texeria v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405; see Bank of N.Y. Mellon v Dieudonne , 171 AD3d 34, 36; Minskoff Grant Realty & Mgt. Corp. v 211 Mgr. Corp. , 71 AD3d 843, 845).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), a plaintiff can defeat the defendant’s prima facie showing by establishing that the limitations period was tolled.

Badzio v. Americare Certified Special Servs., Inc. · filed 2019-11-20(a)(5)

The defendants demonstrated, prima facie, that so much of the amended complaint asserted by Badzio as seeks damages for underpayment of wages prior to April 18, 2010, and so much of the amended complaint asserted by Salo as seeks damages for underpayment of wages prior to January 30, 2011, was time-barred ( see Labor Law §§ 198[3]; 663[3]; O'Brien v County of Nassau , 164 AD3d 684, 685-686). However, in opposition, the plaintiffs established that the statute of limitations was tolled by the rule set forth in American Pipe .

CPLR 3211(e) waives a statute of limitations defense unless it is raised in an answer or in a motion to dismiss made before the answer is due.

Nestor I, LLC v. Moriarty-Gentile · filed 2020-01-22(e)

CPLR 3211(e) provides that a defense based upon the statute of limitations is waived if not asserted in an answer or in a timely motion to dismiss pursuant to CPLR 3211(a). Such a motion is timely if it is made before service of the answer is required ( see CPLR 3211[e]). Here, the defendants never answered the complaint, and their cross motion, inter alia, to dismiss the complaint was served at least six months after service of the answer was required. Thus, unless the defendants' default is vacated or excused, the defendants waived their statute of limitations defense, and in their cross motion, the defendants did not seek relief from that waiver.

Section 3211(e) waives a statute of limitations defense if the defendant fails to raise it in an answer or a timely pre-answer motion to dismiss.

Green Tree Servicing, LLC v. Weiss · filed 2020-02-05(e)

Moreover, the defendants waived a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss ( see CPLR 3211[a][5]; [e]; 21st Mtge. Corp. v Palazzotto , 164 AD3d 1293, 1294; MidFirst Bank v Ajala , 146 AD3d 875; South Point, Inc. v Rana , 139 AD3d 935, 935-936).

Section 3211(e) provides that a pre-answer motion to dismiss on one ground does not waive a statute of limitations ground for dismissal.

Matter of Russell v. New York State Ins. Fund · filed 2020-03-12(e)

Respondents' pre-answer motion to dismiss for failure to state a cause of action, i.e., CPLR 3211(a)(7), did not effect a waiver of the statute of limitations ground for dismissal (CPLR 3211[a][5]) ( see Hertz Corp. v Luken , 126 AD2d 446, 448 [1st Dept 1987]; CPLR 3211[e]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), a plaintiff can defeat the defendant's initial showing that the limitations period expired by raising a question of fact about tolling or whether the period applies.

US Bank N.A. v. Levy · filed 2020-05-27(a)(5)

While the defendants Bina Levy and Isaac Levy (hereinafter together the defendants) sustained their initial burden of demonstrating, prima facie, that the time within which to commence the action had expired ( see Deutsche Bank National Trust Co. v Gambino , 153 AD3d 1232, 1234; see also Albertina Realty Co. v Rosbro Realty Corp. , 258 NY 472, 476), the plaintiff, in opposition, raised a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable ( see Milone v US Bank N.A. , 164 AD3d 145, 153-154). Accordingly, we agree with the Supreme Court's denial of the defendants' 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 of a complaint when its causes of action are time-barred.

Williams v. Georgopoulos · filed 2020-06-03(a)(5)

Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for leave to reargue and, upon reargument, to grant that branch of the defendants' prior motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them and to deny the plaintiffs' prior cross motion for leave to amend the complaint.

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

Anderson v. Pinn · filed 2020-07-01(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 HSBC Bank USA, N.A. v Grella , 176 AD3d 924, 925).

On a motion to dismiss as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual question about an exception, tolling, or timely commencement.

Keshner v. Hein Waters & Klein · filed 2020-07-15(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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see HSBC Bank USA, N.A. v Gold , 171 AD3d 1029, 1030; U.S. Bank N.A. v Joseph , 159 AD3d 968, 969). If the defendant satisfies this burden, the burden then shifts to the plaintiff to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see HSBC Bank USA, N.A. v Gold , 171 AD3d at 1030; Wells Fargo Bank, N.A. v Burke , 155 AD3d at 669; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780, 781).

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

Aurilia v. Carbonara · filed 2020-07-15(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as time-barred, 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, 607; Landow v Snow Becker Krauss, P.C. , 111 AD3d 795, 796).

On a limitations-based motion under CPLR 3211(a)(5), the defendant bears the initial burden of showing that the action is untimely.

Federal Natl. Mtge. Assn. v. Puma · filed 2020-08-05(a)(5)

Since the plaintiff did not commence this action until September 2016, more than six years later, the defendant sustained his initial burden of demonstrating, prima facie, that this action was untimely ( see Bank of N.Y. Mellon v Craig , 169 AD3d at 629).

On a CPLR 3211(a) motion based on a contractual limitations period, a defendant can establish that the action was untimely, leaving the plaintiff to raise a factual question about tolling, inapplicability, or timely commencement.

D. Gangi Contr. Corp. v. City of New York · filed 2020-08-05(a)

The Supreme Court, upon reargument, should have granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. The defendants established, prima facie, that this action was not commenced within the limitations period set forth in the contract for breach of contract claims ( see Matter of Oriskany Cent. School Dist. [Booth Architects] , 85 NY2d 995, 997; see also Precision Window Sys., Inc. v EMB Contr. Corp. , 149 AD3d 883; State of Narrow Fabric, Inc. v UNIFI, Inc. , 126 AD3d 881; Hunt v Raymour & Flanigan , 105 AD3d 1005; Jamaica Hosp. Med. Ctr. v Carrier Corp. , 5 AD3d 442). In opposition, the plaintiff failed 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 period propounded by the defendants.

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 burden then shifts to the plaintiff to establish an exception.

Arnell Constr. Corp. v. New York City Sch. Constr. Auth. · filed 2020-08-12(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" ( Livingston v En-Consultants, Inc. , 115 AD3d 650, 651). Where the defendant makes that prima facie showing, the burden then shifts to the plaintiff to "aver evidentiary facts establishing that the case falls within an exception" ( Savarese v Shatz , 273 AD2d 219, 220 [internal quotation marks omitted]; see Ditech Fin., LLC v Naidu , 175 AD3d 1387, 1388, lv granted 34 NY3d 910).

On a motion to dismiss as time-barred, the defendant must initially show when the claim accrued and that the time to sue expired; the plaintiff can defeat dismissal by raising a question of fact about timeliness.

U.S. Bank N.A. v. Brown · filed 2020-08-20(a)(5)

In moving to dismiss the complaint on statute of limitations grounds, the defendant has "the initial burden of establishing prima facie that the time in which to sue has expired . . . , and thus [is] required to establish, inter alia, when the plaintiff's cause of action accrued" ( Larkin v Rochester Hous. Auth. , 81 AD3d 1354, 1355 [4th Dept 2011] [internal quotation marks omitted]; see Chaplin v Tompkins , 173 AD3d 1661, 1662 [4th Dept 2019]). ... We nevertheless agree with plaintiff that its submissions in opposition to the motion raised a question of fact whether the present action was timely commenced.

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 tolling.

U.S. Bank N.A. v. Bernice 380 Corp. · filed 2020-09-30(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" ( Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197; see U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835). If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period ( see U.S. Bank N.A. v Gordon , 158 AD3d at 835).

Under CPLR 3211(a)(5), a defendant who establishes prima facie that a claim is time-barred may obtain dismissal if the plaintiff fails to raise a question of fact about tolling or another reason the limitations period does not apply.

Citimortgage, Inc. v. Ford · filed 2020-09-30(a)(5)

ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant John E. Ford, to strike his answer, and for an order of reference are denied, and that defendant's cross motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred is granted. ... Since the plaintiff did not commence the instant action until June 22, 2016, the defendant established, prima facie, that the instant action is time-barred. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or is otherwise inapplicable ( see Ross v Jamaica Hosp. Med. Ctr. , 122 AD3d 607, 608).

A defendant seeking dismissal as time-barred under CPLR 3211(a)(5) initially must show that the time to sue has expired.

HSBC Bank USA, N.A. v. Janvier · filed 2020-10-21(a)(5)

A defendant who moves to dismiss 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 Berger v Stolzenberg , 158 AD3d 738, 739; Murray v Charap , 150 AD3d 752, 753).

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.

Christiana Trust v. Birica · filed 2020-10-21(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" ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669; see Bank of N.Y. Mellon v Craig , 169 AD3d 627, 628).

A defendant waives a statute of limitations defense unless it is raised in a responsive pleading or a pre-answer motion to dismiss.

U.S. Bank Natl. Assn. v. Kaufman · filed 2020-10-29(e)

Unless raised in a responsive pleading or a pre-answer motion to dismiss, a defendant waives the statute of limitations defense ( see CPLR 3211 [e]; Gauthier v Countryway Ins. Co. , 100 AD3d 1062, 1062 [2012]). Defendant never answered the complaint nor did she make a pre-answer motion to dismiss arguing that the complaint was untimely. As such, under the procedural posture of this case, the court should not have dismissed the complaint as not timely commenced ( see 352 Legion Funding Assoc. v 348 Riverdale, LLC , 164 AD3d 551, 552-553 [2018]).

On a CPLR 3211(a) motion, a limitations defense does not warrant dismissal when the record leaves doubt about its conclusive applicability.

Matter of Eisdorfer · filed 2020-11-04(a)

"Where there is any doubt on the record as to the conclusive applicability of a Statute of Limitations defense, the motion to dismiss the proceeding should be denied" ( Matter of Behr , 191 AD2d at 431). ... Accordingly, we disagree with the Surrogate's Court's determination to grant the respondents' motions to dismiss the petitions.

On a motion to dismiss a foreclosure complaint as time-barred under CPLR 3211(a)(5), the plaintiff must provide admissible evidence of a timely revocation of the loan’s acceleration to avoid dismissal.

PROF-2013-S3 Legal Tit. Trust II v. Weisz · filed 2020-11-12(a)(5)

In the absence of any admissible evidence of revocation of the acceleration of the loan within six years after the acceleration, the instant action, commenced in 2018, more than six years after the loan was accelerated in 2008, was properly determined to be time-barred.

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

Kotlyarsky v. Abrazi · filed 2020-11-12(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 defendant seeking dismissal as time-barred under CPLR 3211(a)(5) bears the initial burden of showing that the time to sue has expired.

Bank of N.Y. Mellon Trust Co., N.A. v. Lagasse · filed 2020-11-12(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" ( Gravel v Cicola , 297 AD2d 620, 620; see Texeria [*2]v BAB Nuclear Radiology, P.C. , 43 AD3d 403, 405).

Under CPLR 3211(a)(5), a limitations motion warrants dismissal when the record shows the action is untimely and the plaintiff raises no issue of fact about timeliness.

Cautious Care Med., P.C. v. Omni Indem. Co. · filed 2020-11-13(a)(5)

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant's motion which had sought to dismiss the complaint pursuant to CPLR 3211 (a) (5), on the ground that the action is barred by the statute of limitations. ... In opposition, plaintiff failed to raise an issue of fact as to the action's timeliness. ... Accordingly, the order, insofar as appealed from, is reversed and defendant's motion to dismiss the complaint is granted.

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 raise a factual question about tolling, an exception, or timely filing.

Flintlock Constr. Servs., LLC v. Rubin, Fiorella & Friedman, LLP · filed 2020-11-17(a)(5)

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

On a motion to dismiss as time-barred under CPLR 3211(a)(5), once the defendant shows that the filing period expired, the plaintiff must raise a question of fact about tolling, inapplicability, or timely filing.

Wells Fargo Bank, N.A. v. Islam · filed 2020-11-18(a)(5)

"If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d 1750, 1752; see Stewart v GDC Tower at Greystone , 138 AD3d at 730).

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

Listwon v. 500 Metro. Owner, LLC · filed 2020-11-18(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'" ( Sullivan v Keyspan Corp. , 155 AD3d 804, 805, quoting Benjamin v Keyspan Corp. , 104 AD3d 891, 892 [internal quotation marks omitted]; see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc. , 90 AD3d 821, 822).

On a motion to dismiss a foreclosure complaint as time-barred, the defendant must show that the limitations period expired; the plaintiff must then raise a triable issue of fact.

Deutsche Bank Natl. Trust Co. v. Daldan, Inc. · filed 2020-11-18(a)(5)

In any event, on their motion to dismiss, the defendants established, prima facie, that the statute of limitations for commencing an action to foreclose on the subject mortgage expired, and the Bank failed to raise a triable issue of fact in opposition ( see 21st Mtge. Corp. v Balliraj , 177 AD3d 687, 689; Ditech Fin., LLC v Naidu , 175 AD3d 1387, 1389, lv granted 34 NY3d 910).

A defendant seeking dismissal under CPLR 3211(a) as time-barred must make a prima facie showing that the action was not commenced within the applicable limitations period.

U.S. Bank N.A. v. Haughton · filed 2020-12-16(a)(5)

We agree with the Supreme Court's determination to deny that branch of the defendant's cross motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it as time-barred, as the defendant failed to establish, prima facie, that the action was not commenced within the applicable six-year statute of limitations ( see U.S. Bank N.A. v Gordon , 158 AD3d 832, 843).

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

Farro v. Schochet · filed 2021-01-13(a)(5)

To obtain dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, the party seeking dismissal bears the initial burden of establishing, prima facie, that the time within which to sue has expired ( see Matter of Horowitz [*2]v Foster , 180 AD3d 783, 784).

On a CPLR 3211(a)(5) motion to dismiss as untimely, the defendant must establish, prima facie, that the applicable limitations period has expired.

Doe v. Advantagecare Physicians, P.C. · filed 2021-01-20(a)(5)

Further, the Supreme Court should not have granted that branch of the motion of Advantagecare which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it. While the plaintiff's damages may have been caused by Weintraub's alleged battery and assault, liability against Advantagecare is not based on an allegation that it intentionally harmed the plaintiff, but that it was negligent ( see De La Cruz v Nour , 134 AD3d 883, 884; Green v Emmanuel African M.E. Church , 278 AD2d 132). Thus, Advantagecare failed to establish, prima facie, that the three-year statute of limitations for negligence ( see CPLR 214) did not apply to the causes of action interposed by the plaintiff against it ( see De La Cruz v Nour , 134 AD3d at 885; see generally N.X. v Cabrini Med. Ctr. , 97 NY2d 247).

CPLR 3211(e) bars a statute of limitations defense after the defendant's answer is stricken on an opposed motion.

U.S. Bank NA v. Smith · filed 2021-02-03(e)

The defendant was barred from raising her statute of limitations defense after the Supreme Court granted the plaintiff's opposed motion, inter alia, to strike her answer ( see CPLR 3018[b], 3211[e]).

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 commence the action has expired.

U.S. Bank N.A. v. Kropp-Somoza · filed 2021-02-17(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" ( U.S. Bank N.A. v Gordon , 158 AD3d 832, 834-835 [internal quotation marks omitted]; see U.S. Bank N.A. v Greenberg , 170 AD3d 1237).

CPLR 3211(a)(5) permits dismissal of the portion of a mortgage foreclosure complaint seeking installments that became time-barred before the action commenced.

U.S. Bank N.A. v. Singer · filed 2021-03-31(a)(5)

Moreover, upon amendment, that branch of the Singers' cross motion which was pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as sought to recover unpaid installments of the mortgage which accrued more than six years prior to the commencement of the subject action should have been granted.

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

U.S. Bank N.A. v. Derissaint · filed 2021-04-07(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).

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

Klein v. Deutsch · filed 2021-04-07(a)(5)

Here, insofar as there is a factual dispute as to when, if at all, certain triggering events occurred under the provisions of the relevant contracts, the defendants failed to meet their burden in the first instance to establish that the time in which to commence an action alleging breach of contract had expired.

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

Wells Fargo Bank, N.A. v. Islam · filed 2021-04-21(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" ( Rakusin v Miano , 84 AD3d 1051, 1052; see Stewart v GDC Tower at Greystone , 138 AD3d 729, 730).

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

HSBC Bank USA, N.A. v. King · filed 2021-04-07(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'" ( U.S. Bank N.A. v Vitolo , 182 AD3d 627, 627-628, quoting Wells Fargo Bank, N.A. v Eitani , 148 AD3d 193, 197). ... Here, the appellants failed to satisfy their initial burden of demonstrating, prima facie, that the time within which to commence the action had expired ( see U.S. Bank N.A. v Gordon , 176 AD3d 1006, 1008).

On a motion to dismiss a foreclosure action as time-barred, the defendant can meet the initial burden by showing that a prior acceleration made the action untimely; the plaintiff must then raise a triable issue with admissible evidence.

Residential Mtge. Loan Trust 2013-TT2 v. Fiorita · filed 2021-05-19(a)(5)

The defendant sustained her initial burden of demonstrating, prima facie, that the action was untimely commenced by establishing that the mortgage debt was accelerated in a prior foreclosure action commenced in 2007, which was dismissed in 2014 for lack of personal jurisdiction over the defendant ( see Federal Natl. Mtge. Assn. v Schmitt , 172 AD3d 1324, 1325). In opposition, the plaintiff failed to raise a triable issue of fact as to whether this action was timely commenced, as it failed to submit admissible evidence supporting its claim that the debt was not validly accelerated in the 2007 action ( see Federal Natl. Mtge. Assn. v Puma , 186 AD3d 457, 458-459; Bank of N.Y. Mellon v Ahmed , 181 AD3d 634, 636).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), once the movant makes a prima facie showing, the opposing party must present admissible evidence raising a question of fact about timeliness or tolling.

Everhome Mtge. Co. v. Aber · filed 2021-06-09(a)(5)

Since the plaintiff did not commence this action until June 24, 2015, more than six years later, Equity sustained its initial burden of demonstrating, prima facie, that this action is time-barred ( see U.S. Bank N.A. v Martin , 144 AD3d 891, 892). The burden then shifted to the plaintiff to present admissible evidence to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced this action within the applicable limitations period ( see Bank of N.Y. Mellon v Dieudonne , 171 AD3d 34, 38; Bank of N.Y. Mellon v Craig , 169 AD3d at 629).

On a CPLR 3211(a)(5) limitations motion, the defendant may establish untimeliness with the complaint, and the plaintiff must then provide evidence of a later accrual date.

Haggerty v. Allstate Ins. Co. · filed 2021-06-11(a)(5)

Here, Allstate met its prima facie burden on the motion of establishing that the action was untimely by submitting plaintiff's complaint, which demonstrated that, while the accident occurred on August 6, 2010, the action was not commenced until more than six years later on March 4, 2019 ( see Matter of New York City Tr. Auth. v Hill , 107 AD3d 897, 898 [2d Dept 2013]; Jenkins , 21 AD3d at 530). In opposition, plaintiff failed "to come forward with evidence of an accrual date later than the date of the accident" ( New York City Tr. Auth. , 107 AD3d at 898; see Jenkins , 21 AD3d at 530).

A movant seeking dismissal as time-barred under CPLR 3211(a)(5) does not make a prima facie showing by submitting evidence that the mortgage debt was accelerated when the same evidence shows the earlier foreclosure action was voluntarily discontinued.

FV-1, Inc. v. Palaguachi · filed 2021-06-23(a)(5)

Gustavia's evidence that the debt was accelerated by the 2010 action, which was later discontinued voluntarily, failed to demonstrate, prima facie, that an action to foreclose the subject mortgage was time-barred ( see Freedom Mtge. Corp. v Engel , ___ NY3d at ___, 2021 NY Slip Op 01090, *2).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must initially show that the action is untimely; the plaintiff may then raise an issue of fact as to timeliness.

Federal Natl. Mtge. Assn. v. Woolstone · filed 2021-07-14(a)(5)

Since the instant action was commenced on July 31, 2018, more than six years after the prior action was commenced, the defendant sustained his initial burden of demonstrating, prima facie, that the instant action was untimely ( see Deutsche Bank Trust Co. Ams. v Smith , 170 AD3d 660, 660-661). In opposition, the plaintiff failed to raise an issue of fact as to whether the instant action was timely ( see Christiana Trust v Barua , 184 AD3d 140, 151; Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669-670).

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

U.S. Bank N.A. v. Francis · filed 2021-08-04(a)(5)

The defendant's evidence that the debt was accelerated by commencement of the 2010 action, which was later discontinued voluntarily, failed to demonstrate, prima facie, that an action to foreclose the subject mortgage was time-barred ( see Freedom Mtge. Corp. v Engel , 37 NY3d at 19).

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

U.S. Bank, N.A. v. Heirs & distributees of the estate of Morris Kaplan · filed 2021-08-11(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).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), once the defendant meets the initial burden, the plaintiff must raise a question of fact about timeliness or an exception to the limitations period.

Wilmington Sav. Fund Socy., FSB v. 117 Pulaski, LLC · filed 2021-08-18(a)(5)

Where, as here, a defendant satisfies the initial burden of proof on a motion pursuant to CPLR 3211(a)(5), "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 plaintiff actually commenced the action within the applicable limitations period" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952; see Stewart v GDC Tower at Greystone , 138 AD3d 729, 730).

On a statute of limitations motion to dismiss, 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.

Kulback's Inc. v. Buffalo State Ventures, LLC · filed 2021-08-26(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" ( Rakusin v Miano , 84 AD3d 1051, 1052 [2d Dept 2011]). ... Here, although BSV and the individual defendants met their initial burden on their motion by submitting documentary evidence that the work was completed in October 2017 and that plaintiff did not commence the action until February 13, 2019, plaintiff submitted documentary evidence raising a question of fact with respect to when all the work on the project was completed, i.e., whether plaintiff's work on the project continued through February 14, 2018 ( cf. Losco Group v Yonkers Residential Ctr ., 276 AD2d 532, 533 [2d Dept 2000]).

On a motion to dismiss as time barred under CPLR 3211(a)(5), the movant must first show that the time to sue expired; the nonmoving party must then raise a factual question about an exception, toll, or timely commencement.

Wells Fargo Bank N.A. v. Kehres · filed 2021-11-10(a)(5)

A party who moves to dismiss 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 Berger v Stolzenberg , 158 AD3d 738, 739; Murray v Charap , 150 AD3d 752, 753). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see Berger v Stolzenberg , 158 AD3d at 739; Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.] , 107 AD3d 780, 781).

A defendant seeking dismissal as time-barred under CPLR 3211(a)(5) must initially establish when the claim accrued and make a prima facie showing that the limitations period expired.

DiCenzo v. Mone · filed 2021-12-02(a)(5)

To obtain dismissal of a claim under "CPLR 3211 (a) (5), [the] defendant[s] bore the initial burden to establish, prima facie, that the action was time-barred, and, to do so, [were] required to establish when [the] plaintiff's causes of action accrued" ( Northeastern Indus. Park, Inc. v Hoosick Val. Contrs., Inc. , 106 AD3d 1182, 1183 [2013] [internal citations omitted]; see CitiMortgage, Inc. v Ramirez , 192 AD3d 70, 74 [2020]; Belair Care Ctr., Inc. v Cool Insuring Agency, Inc. , 168 AD3d 1162, 1166 [2019]).

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

Mintz v. City of Rochester · filed 2021-12-23(a)(5)

It is well settled that, "[o]n 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" ( Cimino v Dembeck , 61 AD3d 802, 803 [2d Dept 2009]; see Federal Natl. Mtge. Assn. v Tortora , 188 AD3d 70, 74 [4th Dept 2020]; Larkin v Rochester Housing Auth ., 81 AD3d 1354, 1355 [4th Dept 2011]).

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

Kramer v. Meridian Capital Group, LLC · filed 2022-01-26(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" ( HSBC Bank USA, N.A. v King , 193 AD3d 694, 695 [internal quotation marks omitted]).

A motion under CPLR 3211(a)(5) to dismiss an action as time-barred must be denied when a factual issue remains about whether an acknowledgment of debt takes the action outside the statute of limitations.

MB Moda Borse S.R.L. v. Marks · filed 2022-02-03(a)(5)

Order, Supreme Court, New York County (Alan C. Marin, J.), entered on or about October 30, 2020, which, to the extent appealed from as limited by the briefs, granted defendants' cross motion under CPLR 3211(a)(5) to dismiss the action as time-barred, unanimously reversed, on the law, without costs, the cross motion denied, and the complaint reinstated. The record presents an issue of fact as to whether defendants' March 27, 2015 email acknowledged a debt and the obligation to pay it within the meaning of General Obligations Law § 17-101, thus taking the action outside the statute of limitations ( see Hawk Mtn. LLC v RAM Capital Group LLC, 192 AD3d 447, 448 [1st Dept 2021]; Renk v Renk, 188 AD3d 502, 503 [1st Dept 2020]).

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.

Tulino v. Hiller, P.C. · filed 2022-02-23(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 ( see Deutsche Bank Natl. Trust Co. v Blank , 189 AD3d 1678, 1679; Christiana Trust v Birica , 187 AD3d 979, 981).

A defendant seeking dismissal as time-barred under CPLR 3211(a)(5) must first make a prima facie showing that the time to sue has expired.

Craig v. Rutland Nursing Home · filed 2022-02-23(a)(5)

A defendant who 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 bears the initial burden of proving, prima facie, that the time in which to sue has expired ( see HSBC Bank USA, N.A. v Janvier , 187 AD3d 999, 1000).

On a motion to dismiss under CPLR 3211(a)(5) based on the statute of limitations, the defendant initially must establish that the limitations period has expired.

Morales v. Arrowood Indem. Co. · filed 2022-03-11(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]).

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

Morgan v. Suco · filed 2022-04-13(a)(5)

Here, the defendants met their initial burden of establishing the time in which to commence this action has expired by demonstrating that the fence was erected more than 10 years prior to the commencement of this action ( see Nautilus Land Owners Corp. v Gilbert , 253 AD2d 862). In opposition, the plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the plaintiffs actually commenced the action within the applicable limitations period ( see Kotlyarsky v Abrazi , 188 AD3d 853, 854; Barry v Cadman Towers, Inc. , 136 AD3d 951, 952). Accordingly, the Supreme Court properly 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 based on the statute of limitations, the defendant must first show that the filing period expired; the plaintiff must then raise a factual question about tolling or another reason the limit does not apply.

Joseph v. Fensterman · filed 2022-04-13(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. 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"

On a motion to dismiss under CPLR 3211(a)(5) as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then establish facts supporting an exception.

Collins-Genova v. Louros · filed 2022-04-13(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'" ( Cataldo v Herrmann , 154 AD3d 641, 642, quoting Island ADC, Inc. v Baldassano Architectural Group, P.C. , 49 AD3d 815, 816). If a defendant makes such prima facie showing, the burden shifts 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 [internal quotation marks omitted]).

A defendant seeking dismissal under CPLR 3211(a)(5) as time-barred must make a prima facie showing that the action is untimely.

MTGLQ Invs., L.P. v. Lopez · filed 2022-04-27(a)(5)

"The defendant's evidence that the debt was accelerated by commencement of the prior action, which was later discontinued voluntarily, failed to demonstrate, prima facie, that an action to foreclose the subject mortgage was time-barred" ( U.S. Bank N.A. v Davids , 197 AD3d 1203, 1205; see Freedom Mtge. Corp. v Engel , 37 NY3d at 19; Scarso v Wilmington Sav. Fund Socy., FSB , 200 AD3d 817). Accordingly, the Supreme Court should have denied the defendant's cross motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the time to sue expired before the plaintiff must raise an issue of fact about timeliness.

Deutsche Bank Natl. Trust Co. v. Lewin · filed 2022-05-04(a)(5)

Because Z & D did not meet its prima facie burden, the burden did not shift to the plaintiff to raise issues of fact as to whether the instant action was time-barred ( cf. Bank of N.Y. Mellon v Bissessar , 172 AD3d at 984).

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; the plaintiff must then raise a triable issue in opposition.

Der Velde v. New York Prop. Underwriting Assn. · filed 2022-05-18(a)(5)

Since the plaintiff failed to raise a triable issue of fact in opposition to the defendant's prima facie showing, 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.

CPLR 3211(a)(5) governs dismissal motions based on limitations periods, requiring favorable inferences for the plaintiff and placing the initial prima facie burden on the defendant.

Covert Holdings, LLC v. 1019 Irving Realty, LLC · filed 2022-06-08(a)(5)

In resolving a motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action is barred by the statute of limitations, 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 Bank of N.Y. Mellon v Celestin , 164 AD3d 733, 735). On such a motion, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired ( see id. at 735).

Section 3211(a)(5) allows a defendant to seek dismissal when the claim is barred by the statute of limitations and places the initial burden of showing that the filing period expired on that defendant.

Wells Fargo Bank, N.A. v. Rutty · filed 2022-06-15(a)(5)

A defendant moving to dismiss 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 establishing, prima facie, that the time in which to commence the action has expired ( see HSBC Bank USA, N.A. v Gold , 171 AD3d 1029).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must initially establish when the claim accrued and that the limitations period expired.

Pape Ventures, Inc. v. American Sports Media, L.L.C. · filed 2022-07-08(a)(5)

Here, defendants did not meet their initial burden on that part of the motion based on [*2]CPLR 3211 (a) (5) because they did not establish in their moving papers the relevant accrual date of plaintiff's second through fifth causes of action and, therefore, could not show that the applicable limitations period had expired with respect to those causes of action ( see Chaplin v Tompkins , 173 AD3d 1661, 1662 [4th Dept 2019]; Larkin , 81 AD3d at 1355).

On a motion to dismiss as time-barred, the defendant must first show that the time to sue has expired; the plaintiff must then raise a factual question about a toll, another reason the limitation does not apply, or timely commencement.

Rojas v. Tandon · filed 2022-08-17(a)(5)

"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 proving, prima facie, that the time in which to commence an action has expired" ( Mello v Long Isl. Vitreo-Retinal Consultant, P.C. , 172 AD3d 849, 850; see Chvetsova v Family Smile Dental , 202 AD3d 657). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether she actually commenced the action within the applicable limitations period ( see Muscat v Mid-Hudson Med. Group, P.C. , 135 AD3d 915, 916; Marrero v Sosinsky , 130 AD3d 883, 883).

A defendant moving to dismiss on statute of limitations grounds must initially establish, prima facie, that the time to commence the action has expired.

New Millennium Med. Imaging, P.C. v. GEICO · filed 2022-09-23(a)(5)

A defendant moving to dismiss a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action has expired ( see 6D Farm Corp. v Carr , 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C. , 49 AD3d 815 [2008]).

Section 3211(a)(5) requires a defendant seeking dismissal as time-barred to establish that the action is untimely.

U.S. Bank N.A. v. Johnson · filed 2022-10-05(a)(5)

Here, the defendants failed to meet their burden of establishing that the instant action was time-barred. The evidence they submitted in support of their motion demonstrated that the plaintiff accelerated the subject debt by commencing the prior action in 2008, but also that the plaintiff revoked that acceleration by voluntarily discontinuing that action within six years. Thus, the defendants failed to demonstrate, prima facie, that the 2008 acceleration rendered this action time-barred ( see Deutsche Bank Natl. Trust Co. v Lewin , 205 AD3d at 681). Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred.

CPLR 3211(a)(5) permits dismissal of a time-barred claim when the complaint establishes its untimeliness, even when its allegations are accepted as true and viewed favorably to the plaintiff.

Stewart v. Amber · filed 2022-10-13(a)(5)

Order, Supreme Court, New York County (Debra James, J.), entered October 20, 2021, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs. The court correctly determined that plaintiff's breach of contract claim was time-barred. The allegations in the complaint, even accepted as true and viewed in the light most favorable to plaintiff, established that the claim accrued at the latest in 2010 ( see Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co. , 18 NY3d 765, 770-771 [2012]). Because this action was brought more than six years later, it was untimely (CPLR 213 [2]).

A defendant seeking dismissal under CPLR 3211(a)(5) as time-barred must first make a prima facie showing that the time to commence the action has expired.

Baltzer v. Westchester Med. Ctr. · filed 2022-10-19(a)(5)

A defendant who seeks dismissal of a cause of action pursuant to CPLR 3211(a)(5) "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" ( Mello v Long Is. Vitreo-Retinal Consultant, P.C. , 172 AD3d at 850; see Campone v Panos , 142 AD3d 1126, 1127).

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

Colucci v. Rzepka · filed 2022-10-27(a)(5)

As the moving parties, the law firms bear the "the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( Krog Corp. v Vanner Group, Inc. , 158 AD3d 914, 915 [3d Dept 2018] [internal quotation marks and citations omitted]; see Lavelle-Tomko v Aswad & Ingraham , 191 AD3d at 1143-1144).

On a pre-answer motion to dismiss, disputed facts about continuous representation cannot be resolved to bar a legal malpractice claim as untimely.

Basile v. Law Offs. of Neal Brickman, P.C. · filed 2022-11-01(a)(5)

These factual contentions concerning whether defendant continued to represent plaintiff during the relevant time period so as to toll the limitations period give rise to factual issues that cannot be resolved in this pre-answer motion to dismiss ( see Boesky v Levine , 193 AD3d 403 [1st Dept 2021]; Johnson v Law Off. of Kenneth B. Schwartz , 145 AD3d 608, 612 [1st Dept 2016]).

On a CPLR 3211(a)(5) motion, the court accepts the complaint’s allegations as true, gives the plaintiff every favorable inference, and requires the defendant to show initially that the time to sue has expired.

Sibrian v. 244 Madison Realty Corp. · filed 2022-11-23(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 Covert Holdings, LLC v 1019 Irving Realty, LLC , 206 AD3d 691). On such a motion, "the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Van Der Velde v New York Prop. Underwriting Assn. , 205 AD3d 970, 970 [internal quotation marks omitted]).

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; dismissal is improper if the plaintiff raises a question of fact about a toll.

Hall v. Bolognese · filed 2022-11-23(a)(5)

The Supreme Court erred in granting that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based on treatment provided to the injured plaintiff prior to October 24, 2012, insofar as asserted by the injured plaintiff against the North Shore defendants. ... "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 proving, prima facie, that the time in which to commence an action has expired" ( Osborn v DeChiara , 165 AD3d 1270, 1271; see CPLR 214-a). The burden then shifts to the plaintiff to present evidence raising a question of fact as to whether the action falls within an exception to the statute of limitations or whether the continuous treatment doctrine applies to toll the statute of limitations ( see Osborn v DeChiara , 165 AD3d at 1271-1272).

On a motion to dismiss a complaint as time-barred under CPLR 3211(a)(5), the defendant must first establish that the time to commence the action has expired; the burden then shifts to the plaintiff to raise a question of fact about timeliness or tolling.

Mohrman v. Johns · filed 2022-11-30(a)(5)

On a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint as time-barred, the moving defendants must establish, prima facie, that the time within which to commence the action has expired ( see Kotlyarsky v Abrazi , 188 AD3d 853, 854; Edem v Wondemagegehu , 175 AD3d 466, 467; Goodman v Skanska USA Civ., Inc. , 169 AD3d 1010, 1011). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period ( see Kotlyarsky v Abrazi , 188 AD3d at 854; Edem v Wondemagegehu , 175 AD3d at 467).

CPLR 3211(a)(5) permits dismissal of a complaint when the defendant establishes that the action is time-barred.

U.S. Bank N.A. v. Dallas · filed 2023-01-11(a)(5)

Since Dallas established that this action was time-barred, the Supreme Court also properly granted those branches of her motion which were pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred and for summary judgment on her [*3]counterclaims to cancel and discharge of record the mortgage and for an award of attorneys' fees.

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 question about timeliness or an applicable toll.

Lyles v. County of Nassau · filed 2023-02-22(a)(5)

A defendant who seeks dismissal of a cause of action pursuant to CPLR [*2]3211(a)(5) "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" ( Mello v Long Is. Vitreo-Retinal Consultant, P.C. , 172 AD3d 849, 850; see Campone v Panos , 142 AD3d 1126, 1127). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( Campone v Panos , 142 AD3d at 1127 [internal quotation marks omitted]; see Petito v Roberts , 113 AD3d 743, 744).

Once a defendant shows that the time to commence an action has expired, the plaintiff must raise a factual issue about tolling, inapplicability, or timely commencement; proposed consolidation with a timely action does not meet that burden.

HSBC Bank USA, N.A. v. Francis · filed 2023-02-22(a)(5)

Once the defendant here met her burden of establishing, prima facie, that the time in which to commence the 2017 action had expired, it became the plaintiff's burden to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period. The plaintiff could not meet that shifted burden by merely asserting that the 2017 action will become timely once it is merged with the timely 2008 action.

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 question about tolling or the period’s applicability.

Fraumeni v. Law Firm of Jonathan D'Agostino, P.C. · filed 2023-04-19(a)(5)

"'In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. 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'" ( Joseph v Fensterman , 204 AD3d 766, 769, quoting Schrull v Weis , [*2]166 AD3d 829, 831; see Stein Indust., Inc. v Certilman Balin Adler & Hyman, LLP , 149 AD3d 788, 789).

On a motion to dismiss as time-barred under § 3211(a)(5), the defendant must first establish that the limitations period has expired; only then does the burden shift to the plaintiff.

Baker v. Eastern Niagara Hosp., Inc. · filed 2023-06-09(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]). ... We agree with plaintiff that the court erred in granting the motions inasmuch as defendants failed to meet their initial burdens of establishing that the action is time-barred.

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

Schearer v. Fitzgerald · filed 2023-06-28(a)(5)

Moreover, 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" ( Kogut v Village of Chestnut Ridge , 214 AD3d 777, 778 [internal quotation marks omitted]; see Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029).

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.

Hershman v. Bank of N.Y. Mellon · filed 2023-08-23(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" ( Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029 [internal quotation marks omitted]). Here, the defendants failed to satisfy their initial burden of demonstrating, prima facie, that the cause of action alleging breach of contract was time-barred ( see JP Morgan Chase Bank, N.A. v Mbanefo , 166 AD3d 742, 744).

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

Delzotti v. Bowers · filed 2023-08-30(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" ( U.S. Bank N.A. v Derissaint , 193 AD3d 790, 791; see Ross v Jamaica Hosp. Med. Ctr. , 122 AD3d 607, 608).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the limitations period expired; the plaintiff must then raise a question of fact.

Jung v. Reiner & Kaiser Assoc. · filed 2023-10-04(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, the defendant bears the initial burden of establishing, prima facie, that the time in which to bring that cause of action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact ( see Siegler v Lippe , 189 AD3d 903, 904).

On a motion to dismiss as time-barred, the defendant must first show that the limitations period expired; the plaintiff must then establish that it has not expired or that a toll or exception applies.

Marino v. Weiler · 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 ( see Rider v Rainbow Mobile Home Park, LLP , 192 AD3d 1561, 1561-1562 [4th Dept 2021]). Defendant-respondent met its burden. Plaintiff does not dispute that her causes of action accrued at the latest in 2009, and she commenced this action on December 1, 2021. The burden then shifted to plaintiff to "aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" ( id. at 1562 [internal quotation marks omitted]). Plaintiff failed to sustain her burden.

Section 3211(a)(5) permits dismissal on limitations grounds when the defendant shows that the time to sue has expired; the plaintiff must then raise a factual issue about tolling or another reason the limit does not apply.

Braddock v. Shwarts · filed 2023-10-06(a)(5)

In any event, the purportedly assigned claims are time-barred, and must also be dismissed on that basis. "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" ( Yang v Oceanside Union Free Sch. Dist. , 90 AD3d 649, 649 [2d Dept 2011]).

Section 3211(a)(5) requires the defendant to establish prima facie that the time to sue has expired, after which the plaintiff must raise a fact question about tolling or the applicable limitations period.

Mostafa v. Pension Solutions, LLC · filed 2023-11-29(a)(5)

"On such a motion, "the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952; see Sibrian v 244 Madison Realty Corp. , 210 AD3d at 1031)."

On a statute of limitations motion under CPLR 3211(a)(5), once the defendant shows that the time to sue has expired, the plaintiff must raise a factual question about tolling, inapplicability, or timely commencement.

Green Tree Servicing, LLC v. Weiss · filed 2023-12-06(a)(5)

Where "a defendant satisfies the initial burden of proof on a motion pursuant to CPLR 3211(a)(5), '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 plaintiff actually commenced the action within the applicable limitations period'" ( U.S. Bank N.A. v Derissaint , 193 AD3d at 791-792 quoting Barry v Cadman Towers, Inc. , 136 AD3d 951, 952). Contrary to the plaintiff's contention, the defendants demonstrated, prima facie, that this action was time-barred by showing that more than six years had elapsed since the debt was accelerated by the commencement of the 2009 action ( see U.S. Bank N.A. v Onuoha , 216 AD3d 1069, 1072; Select Portfolio Servicing, Inc. v Sampson , 216 AD3d 693, 694). In opposition, the plaintiff failed to raise a question of fact ( see U.S. Bank N.A. v Derissaint , 193 AD3d at 792).

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

Pennymac Corp. v. Erneste · filed 2023-12-06(a)(5)

Under CPLR §3211 (a) (5), a cause of action may not be maintained where the applicable Statute of Limitations has expired.

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 question about tolling, applicability, or timely commencement.

Pare v. Pare · filed 2023-12-13(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 at 627; Coleman v Wells Fargo & Co. , 125 AD3d at 716). 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).

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 burden then shifts to the plaintiff to raise a factual question about an exception, tolling, or timely commencement.

Lautman v. 2800 Coyle St. Owners Corp. · filed 2024-01-10(a)(5)

"A defendant who moves to dismiss 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" ( Plaza Invs. v Capital One Fin. Corp. , 165 AD3d 853, 854). The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period ( see id. at 854).

On a Section 3211(a)(5) motion based on the statute of limitations, the defendant initially bears the burden of showing that the time to sue has expired, while the court accepts the complaint’s allegations as true and draws inferences for the plaintiff.

Dixon v. City of New York · filed 2024-02-13(a)(5)

On a CPLR §3211 (a)(5) motion to dismiss, “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” (Benn v Benn, 82 AD3d 548, 548 [1st Dept 2011]).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first establish that the limitations period expired; the plaintiff may then raise a question of fact about tolling or revival.

Costello v. Curan & Ahlers, LLP · filed 2024-02-14(a)(5)

The defendants met their prima facie burden of establishing that any claims accruing prior to June 30, 2015, were time-barred. However, contrary to the Supreme Court's determination, the plaintiff raised a question of fact as to whether the statute of limitations was tolled or revived.

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the filing period expired; the plaintiff must then raise a question of fact about tolling, inapplicability, or timely filing.

HSBC Bank USA, N.A. v. Corrales · filed 2024-02-21(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" ( U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d 1750, 1752 [internal quotation marks omitted]). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( id. at 1752).

On a limitations motion under CPLR 3211(a)(5), once the defendant shows that the time to sue has expired, the plaintiff must raise a factual issue about tolling.

Open House Manhattan Inc. v. de Visser · filed 2024-02-22(a)(5)

Once the defendant has established, prima facie, that the time to commence an action has expired, "the burden then shifts to the plaintiff to raise questions of fact as to whether the statute of limitations [was] tolled." (See Spitzer v Newman, 163 AD3d 1026, 1027 [2d Dept 2018] [citations omitted].)

Section 3211(a)(5) permits dismissal when a plaintiff fails to rebut a defendant’s prima facie showing that the claims are time-barred.

Goolsby v. City of New York · filed 2024-03-06(a)(5)

Plaintiff has failed to rebut defendant's prima facie showing as to the claims being time-barred, thereby entitling defendant to judgment in its favor ( see CPLR §3211[a][5]).

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.

Jusino v. Federation of Catholic Teachers, Inc. · filed 2024-03-25(a)(5)

On a motion to dismiss a cause of action on such grounds (CPLR 3211 [a] [5]), a defendant bears the initial burden of establishing, prima facie , that the time in which to sue has expired ( Wells Fargo Bank, N.A. v Burke , 155 AD3d 668, 669 [2d Dept 2017]).

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

Bank of N.Y. Mellon v. Fergus · filed 2024-03-27(a)(5)

[o]n amotionto dismiss a cause of action pursuantto CPLR 3211 (a) (5) on the ground that it is ban'ed by the statute oflimitations, a defendant bears theinitial burden of establishing, prima facie, that the time in which to sue has expii·ed.

Under § 3211(a)(5), a defendant seeking dismissal on statute-of-limitations grounds must first make a prima facie showing that the time to commence the action has expired.

Ciancarelli v. Timmins · filed 2024-04-03(a)(5)

"A defendant who seeks dismissal of a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of [demonstrating], [*2]prima facie, that the time in which to commence [the] action has expired" ( Baltzer v Westchester Med. Ctr. , 209 AD3d 815, 817 [internal quotation marks omitted]; see Weinstein v Gewirtz , 208 AD3d 717, 718; Leace v Kohlroser , 151 AD3d 707, 708-709).

CPLR 3211(a)(5) permits dismissal on statute of limitations grounds when the defendant makes a prima facie showing that the limitations period expired, shifting the burden to the plaintiff to show tolling or another basis preventing dismissal.

Buss v. Stryker Corp. · filed 2024-04-24(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'" ( HSBC Bank USA, N.A. v Francis , 214 AD3d 58, 61, quoting Cadlerock Joint Venture, L.P. v Trombley , 189 AD3d 1157, 1158). "If the defendant satisfies the 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 plaintiff actually commenced the action within the applicable limitations period" ( Barry v Cadman Towers, Inc. , 136 AD3d 951, 952).

Section 3211(a)(5) permits dismissal on statute of limitations grounds when the time to sue has expired.

C.L. v. County of Oneida · filed 2024-05-17(a)(5)

When a motion to dismiss is brought on statute of limitations grounds under CPLR 3211 (a) (5), the defendant has "'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 [4th Dept 2011], quoting Savarese v Shatz , 273 AD2d 219, 220 [2d Dept 2000]).

Section 3211(a)(5) permits dismissal when a complaint is barred by the applicable statute of limitations and places the initial burden on the defendant to show that the time to sue has expired.

Pavoist v. Kensington Ins. Co. · filed 2024-06-12(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" ( Van Der Velde v New York [*2]Prop. Underwriting Assn. , 205 AD3d 970, 970 [internal quotation marks omitted]).

Section 3211(a)(5) allows a defendant to seek dismissal when the claim is barred by the statute of limitations.

Morton v. New York City Bd. of Educ. Retirement Sys. · filed 2024-07-17(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'" ( Kogut v Village of Chestnut Ridge , 214 AD3d 777, [*2]778, quoting Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029).

Under CPLR 3211(a)(5), the defendant must first make a prima facie showing that the statute of limitations expired, after which the plaintiff must show tolling, inapplicability, or timely commencement.

Kravets v. Striano · filed 2024-07-17(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" ( HSBC Bank USA, N.A. v Corrales , 224 AD3d 816, 818 [internal quotation marks omitted]; see Sunyoung Jung v Reiner & Kaiser Assoc. , 220 AD3d 643, 645). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( HSBC Bank USA, N.A. v Corrales , 224 AD3d at 818 [internal quotation marks omitted]; see U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d 1750, 1752).

Section 3211(a)(5) permits dismissal of a complaint when the defendant establishes that it is time-barred and the plaintiff fails to raise a question of fact.

Islandcap, LLC v. Cohen · filed 2024-08-21(a)(5)

Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her as time-barred.

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

Randolph v. Brazen Fox · filed 2024-09-11(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" ( Kaul v Brooklyn Friends Sch. , 220 AD3d 939, 940-941 [alterations and internal quotation marks omitted]). "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 action was actually commenced within the applicable limitations period" ( Griffin v Perrotti , 121 AD3d 1041, 1042).

Under subsection (a)(5), a defendant seeking dismissal on statute-of-limitations grounds must initially establish, prima facie, that the time to sue has expired.

Filasky v. Andover Cos. · filed 2024-09-25(a)(5)

Nor did the defendants establish, prima facie, that the action was barred by the statute of limitations ( see CPLR 3211[a][5]).

On a statute of limitations motion under CPLR § 3211(a)(5), the burden shifts to the plaintiff after the defendant makes a prima facie showing that the limitations period expired.

HSBC Bank USA, N.A. v. Castillo · filed 2024-09-30(a)(5)

As such, in the instant case, Defendant has satisfied his prima facie burden that the statute of limitations has run, and the burden shifts to the Plaintiff to produce evidentiary proof in admissible form establishing that a triable issue of material fact exists that the mortgage was never accelerated.

On a limitations motion under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; the plaintiff must then provide evidentiary facts showing timeliness, tolling, or an exception.

Anonymous J.A. v. Golden Fields, LLC · filed 2024-10-01(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]). Once a defendant meets that initial burden, the burden shifts "to plaintiff to aver evidentiary facts . . . establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" (id. at 1562 [internal quotation marks omitted]).

On a motion to dismiss a counterclaim as time-barred under CPLR 3211(a)(5), the party asserting the time bar initially must establish that the time to commence the action has expired.

Parizat v. Meron · filed 2024-10-02(a)(5)

On a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the party asserting that the cause of action is time-barred has the initial burden of establishing, prima facie, that the time in which to commence the action has expired ( see Pare v Pare , 222 AD3d 765; Cannariato v Cannariato , 136 AD3d 627, 627; Coleman v Wells Fargo & Co. , 125 AD3d at 716; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc. , 90 AD3d 821, 822).

On a motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant must first show that the limitations period expired; if it fails, the burden does not shift to the plaintiff.

Lee v. South Nassau Communities Hosp. · filed 2024-10-09(a)(5)

Here, accepting the allegations in the complaint as true and resolving all inferences in favor of the plaintiff, the defendant failed to show, prima facie, that the action was commenced outside of the requisite statute of limitations period, and thus, the burden did not shift to the plaintiff to raise a question of fact as to whether the action was timely commenced ( see Sabadie v Burke , 47 AD3d 913, 914; Panish v Panish, 24 AD3d 642, 643). Thus, the Supreme Court properly denied 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 under Section 3211(a)(5), the court accepts the complaint's allegations as true and resolves inferences in the nonmovant's favor.

Hammer v. Heller · filed 2024-10-15(a)(5)

In considering a motion brought under CPLR 3211(a)(5), a court must accept the allegations in the complaint as true and resolve all inferences in the non·movant's favor (see Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815,816 [2d Dept 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.

Spates v. City of New York · filed 2024-10-16(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 motion to dismiss as time-barred under CPLR 3211(a)(5), the defendant initially bears the burden of showing that the time to commence the action has expired.

Grossbarth v. New York State Lawyers' Fund for Client Protection · filed 2024-10-17(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.

On a limitations motion under § 3211(a)(5), the defendant must show that the time to sue has expired; unresolved facts about the relevant dates and bond terms can defeat dismissal.

Gordon v. Triumph Constr. Corp. · filed 2024-11-26(a)(5)

On a motion to dismiss pursuant to CPLR 3211(a)(5) on the ground that a claim 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” (Norddeutsche Landesbank Girozentral v Tilton, 149 AD3d 152, 158 [1st Dept 2017]). ... At this pre-discovery motion to dismiss, there are unresolved factual questions about the end dates of the work performed, whether violations continued during the duration of the contracts, the identities of putative class members and their dates of employment, as well as the statute of limitations contained in all relevant bonds issued by Liberty Mutual. Because of these questions, Moving Defendants fail to meet their burden of proving that Plaintiffs’ time to sue has expired. Accordingly, this branch of Moving Defendants’ motion is denied without prejudice.

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

Callahan v. City of New York · filed 2024-11-30(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 defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired” (MTGLQ Invs., LP v Wozencraft, 172 AD3d 644, 644 [1st Dept 2019]).

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

U.S. Bank Trust N. A. v. Holmes · filed 2024-12-20(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 defendant bears "the initial burden of establishing prima facie that the time in which to sue has expired . . . , and thus [is] required to establish, inter alia, when the plaintiff's cause of action accrued" ( U.S. Bank N.A. v Brown , 186 AD3d 1038, 1039 [4th Dept 2020] [internal quotation marks omitted]; see HSBC Bank USA, N.A. v Corrales , 224 AD3d 816, 818 [2d Dept 2024]).

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

Moore v. Charap · filed 2024-12-20(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” (Cimino v Dembeck, 61 AD3d 802, 803 [2nd Dept 2009]).

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

Rijos v. New York City Tr. Auth. · filed 2024-12-23(a)(5)

Because this action was commenced on April 4, 2024, defendant has met its prima facie burden that the action was untimely.

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

Dixie v. Scheer · filed 2025-01-11(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. To meet its burden, the defendant must establish, inter alia, when the plaintiff's cause of action accrued."

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 question about timeliness or tolling.

Vega v. Hempstead Union Free Sch. Dist. · filed 2025-02-05(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. If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period"

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

HSBC Bank USA, N.A. v. Srugo · filed 2025-02-10(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."

On a motion to dismiss as time-barred, the movant must first show that the time to sue has expired; the burden then shifts to the claimant to establish an exception or raise a question of fact about timeliness.

Matter of Coden v. Town of Huntington · filed 2025-02-13(a)(5)

A respondent/defendant who seeks dismissal of a petition/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 Listwon v 500 Metro. Owner, LLC , 188 AD3d 1028, 1029). The burden then shifts to the petitioner/plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations or raising a question of fact as to whether such an exception applies or as to whether the cause of action was interposed within the applicable statute of limitations ( see id. ; see also Kogut v Village of Chestnut Ridge , 214 AD3d 777, 778-779).

Section 3211(e) waives a statute of limitations defense unless it is raised in a pre-answer motion or responsive pleading, but the defense may be added through a permitted amended answer.

Sinelnikova v. Museum of Sex LLC · filed 2025-03-04(e)

CPLR 3211(e) provides that a defense based upon the statute of limitations “is waived unless raised either by [pre-answer motion to dismiss] or in the responsive pleading” (CPLR 3211 [e]; see Matter of Part 60 RMBS Put-Back Litig., 195 AD3d 40, 49 [1st Dept 2021]). Where, however, a defendant adds the defense to an amended answer within the time frame for amendments as of right under CPLR 3025(a), or to an answer amended by leave of court under CPLR 3025(b), its omission from the original answer does not constitute a waiver (see McCaskey, ... Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Armstrong v Peat, Marwick, Mitchell & Co., 150 AD2d 189, 190 [1st Dept 1989]).

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 question of fact about tolling, inapplicability, or timely commencement.

HSBC Bank USA v. Lem · filed 2025-03-12(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" ( U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d 1750, 1752 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v Corrales , 224 AD3d 816, 818). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( U.S. Bank N.A. v Bernice 380 Corp. , 186 AD3d at 1752; see HSBC Bank USA, N.A. v Corrales , 224 AD3d at 818).

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 question about timeliness or tolling.

Barbetta v. Facchini · filed 2025-03-05(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 within which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period"

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.

Gormley v. Marist Bros. of the Schs., Province of the United States of Am. · filed 2025-03-19(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" ( Cruz v Guaba , 226 AD3d 964, 965 [internal quotation marks omitted]). ... Here, the defendant failed to establish that the causes of action to set aside or rescind the releases on the ground of fraud were time-barred pursuant to CPLR 3211(a)(5) ( see Lipszyc v Lipszyc , 221 AD3d at 994; Vilsack v Meyer , 96 AD3d at 829).

On a motion to dismiss as time-barred under § 3211(a)(5), the defendant must first show that the time to sue expired; the plaintiff must then raise a question of fact about tolling, another reason the limit does not apply, or timely commencement.

TD Bank, N.A. v. Prince · filed 2025-04-01(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" ( Deutsche Bank Natl. Trust Co. v Blank , 189 AD3d 1678, 1679 [2d Dept. 2020]). "If the defendant satisfies this 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 plaintiff actually commenced the action within the applicable limitations period" ( id. ).

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 show timeliness or raise a factual question about it.

JP Morgan Chase Bank, N.A. v. Dusowitz · filed 2025-04-07(a)(5)

The Court’s analysis of this issue will necessarily mirror that of a traditional motion to dismiss an action as time-barred. The governing standard is as follows: “[o]n 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. 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 [a question of fact] as to whether the action was timely” (Bank of NY Mellon v Craig, 169 AD3d 627, 628 [2d Dept 2019] [internal quotation marks and citations omitted]).