LESSOFF v. 26 CT. ST. ASSOC

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Docket Number

Nos. 2008-05775, 2008-05778.

Attorney(S)

LEONARD LORIN, Brooklyn, N.Y., for appellant.

Judges

Robert J. Miller
Thomas A. Dickerson
Randall T. Eng

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Smart Summary

Factual and Procedural Background

This case arises from a personal injury action filed by Jeffrey Lessoff against 26 Court Street Associates, LLC. The plaintiff alleged he was injured in a slip and fall incident in the defendant's building. On August 22, 2003, the plaintiff mailed a letter to the defendant claiming the injury. Subsequently, on October 10, 2006, the plaintiff commenced the lawsuit by filing a summons and complaint, which alleged the accident occurred on October 11, 2003. The complaint was not properly verified. The defendant moved to dismiss the complaint as time-barred under CPLR 3211(a)(5), contending that the accident occurred on or before August 22, 2003, and that the lawsuit was commenced more than three years after the injury, exceeding the statute of limitations. The Supreme Court denied the defendant’s motion to dismiss, prompting this appeal.

Legal Issues Presented

Whether the complaint against 26 Court Street Associates, LLC should be dismissed as time-barred under CPLR 3211(a)(5) given that the action was commenced more than three years after the alleged accident.
Whether the plaintiff’s submissions in opposition to the motion were sufficient to raise a triable issue of fact regarding the timeliness of the action.

Arguments of the Parties

Appellant's Arguments

The accident occurred on or before August 22, 2003, as evidenced by the plaintiff’s letter claiming injury on that date.
The plaintiff commenced the action on October 10, 2006, which was beyond the three-year statute of limitations period applicable to personal injury claims (CPLR 214).
Therefore, the complaint should be dismissed as time-barred under CPLR 3211(a)(5).

Respondent's Arguments

The plaintiff, an attorney, submitted his own affirmation and a medical report in opposition to the motion.
These submissions purported to establish that the accident date was October 11, 2003, which would render the action timely.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Etienne v H. Schrier Co., Inc., 53 AD3d 470	Establishing the initial burden on a defendant to prove untimeliness under CPLR 3211(a)(5).	Supported the court’s recognition that the defendant met its initial burden by showing the action was commenced after the statute of limitations expired.
Levinsky v Mugermin, 52 AD3d 477	Same as above regarding burden of proof on timeliness.	Reinforced the defendant’s initial burden of proof on the timeliness issue.
Marino v Proch, 258 AD2d 628	Same burden-shifting principle on statute of limitations motions.	Supported the procedural framework applied by the court.
Gravel v Cicola, 297 AD2d 620	Burden on plaintiff to raise a factual issue or establish timeliness after defendant meets initial burden.	Guided the court’s analysis of the plaintiff’s failure to produce evidentiary facts to create a triable issue.
Assad v City of New York, 238 AD2d 456	Same as above regarding plaintiff’s burden to raise issue of fact after defendant’s prima facie showing.	Supported the court’s conclusion that plaintiff did not meet this burden.
Muniz v Katlowitz, 49 AD3d 511	Proper form of submissions by parties; affirmations by parties are improper.	Used to reject the plaintiff’s affirmation as improper evidence.
DeLeonardis v Brown, 15 AD3d 525	Same as above regarding form of submissions.	Further supported rejection of plaintiff’s affirmation.
Matter of Sassower v Greenspan, Kanarek, Jaffe Funk, 121 AD2d 549	Same principle on affirmations versus affidavits.	Reinforced the court’s ruling on improper submission form.
Albrecht v Area Bus Corp., 249 AD2d 253	Inadmissibility of hearsay evidence regarding accident date.	Supported exclusion of the physician’s report as hearsay.
Ginsberg v North Shore Hosp., 213 AD2d 592	Same hearsay principle.	Further supported exclusion of medical report evidence.
Echeverria v City of New York, 166 AD2d 409	Same hearsay principle.	Reinforced the court’s rejection of the medical report’s date as inadmissible.
Boockvor v Fischer, 56 AD3d 405	Improper submission of affidavits in surreply.	Supported the court’s refusal to consider affidavit submitted in surreply.
Flores v Stankiewicz, 35 AD3d 804	Same principle on surreply submissions.	Further supported exclusion of late affidavit.
Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416	Same principle on surreply submissions.	Reinforced the court’s ruling on procedural grounds.

Court's Reasoning and Analysis

The court analyzed the timeliness of the plaintiff’s action under CPLR 3211(a)(5), which permits dismissal when the claim is barred by the statute of limitations. The defendant established through documentary evidence that the plaintiff’s claim accrued on or before August 22, 2003, the date of the letter claiming injury, and that the complaint was filed on October 10, 2006, more than three years later, thus meeting the initial burden to show untimeliness.

The plaintiff, however, failed to meet the subsequent burden to raise a triable issue of fact. The plaintiff’s own affirmation was improper because a party must submit an affidavit, not an affirmation. The medical report relied upon to establish a later accident date was inadmissible hearsay, as the source of the date was unknown and likely based on the plaintiff’s own statements. Additionally, an affidavit submitted by the plaintiff’s law firm office manager was improperly submitted in surreply and was of no probative value.

Because the plaintiff did not produce admissible evidentiary facts to contradict the defendant’s showing, the court concluded that dismissal of the complaint as time-barred was warranted.

Holding and Implications

The court REVERSED the Supreme Court’s order denying the motion to dismiss and granted that branch of the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The appeal from the December 5, 2007 order was dismissed as abandoned, and costs were awarded to the appellant.

The direct effect of this decision is the dismissal of the plaintiff’s personal injury claim against 26 Court Street Associates, LLC on statute of limitations grounds. The opinion does not establish new legal precedent but applies established procedural and evidentiary rules concerning timeliness and admissibility of evidence in motions to dismiss.

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JEFFREY LESSOFF, Respondent, v. 26 COURT STREET ASSOCIATES, LLC, Appellant, et al., Defendants.

Ordered that the appeal from the order dated December 5, 2007 is dismissed as abandoned; and it is further,

Ordered that the order dated March 22, 2007 is reversed insofar as appealed from, on the law, and that branch of the motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against the appellant as time-barred is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

On August 22, 2003 the plaintiff mailed a letter to the appellant claiming that he had been injured as the result of a slip and fall in the appellant's building. On October 10, 2006 the plaintiff commenced this action by filing a summons and complaint. The complaint, which was not properly verified, alleged that the same accident occurred on October 11, 2003 ( see CPLR 3020, 3021). The appellant moved, inter alia, to dismiss the action as time-barred, contending that the accident occurred on or prior to August 22, 2003, and that the action, which was commenced more than three years after the underlying accident, was untimely. The Supreme Court denied that branch of the motion.

In support of that branch of its motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred, the appellant established through documentary evidence that the plaintiff's action accrued on or before August 22, 2003. Since the action was commenced after the expiration of the three-year statute of limitations by the filing of a summons and complaint on October 10, 2006, the appellant sustained the initial burden of proving that the action was untimely ( see CPLR 214; Etienne v H. Schrier Co., Inc., 53 AD3d 470; Levinsky v Mugermin, 52 AD3d 477; Marino v Proch, 258 AD2d 628). Thereafter, the burden was upon the plaintiff to aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely ( see Gravel v Cicola, 297 AD2d 620, 621; Assad v City of New York, 238 AD2d 456, 457).

In opposition, the plaintiff, who is an attorney, submitted his own affirmation and the medical report of his physician. It was improper for the plaintiff to submit his own affirmation rather than an affidavit, since he was a party to the action ( see CPLR 2106; Muniz v Katlowitz, 49 AD3d 511, 513; DeLeonardis v Brown, 15 AD3d 525, 526; Matter of Sassower v Greenspan, Kanarek, Jaffe Funk, 121 AD2d 549). Furthermore, the purported date of the accident contained in the physician's report constituted inadmissible hearsay, since the source of that information was unknown and may have been part of the history relayed by the plaintiff ( see Albrecht v Area Bus Corp., 249 AD2d 253, 255; Ginsberg v North Shore Hosp., 213 AD2d 592; Echeverria v City of New York, 166 AD2d 409, 410). Moreover, the affidavit of the office manager of the plaintiff's law firm was improperly submitted in surreply ( see CPLR 2214; Boockvor v Fischer, 56 AD3d 405; Flores v Stankiewicz, 35 AD3d 804, 805; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416, 417). In any event, that affidavit was of no probative value. Since the plaintiff failed to produce any evidentiary facts with respect to the date of the accident, that branch of the motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against the appellant as time-barred should have been granted.