Practice point: On a motion to dismiss on the ground that the action is time-barred, pursuant to CPLR 3211(a)(5), defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired.
Practitioners should note that, in order to sustain this burden, defendant must establish when the cause of action accrued.
Case: Cottone v. Selective Surfaces, Inc., NY Slip Op 09605 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Motion practice.
