Practice point: 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. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute was tolled or otherwise inapplicable, or whether the action was commenced within the limitations period.
Student note: In considering the motion, the court must take the allegations in the complaint as true, and resolve any inferences in favor of the plaintiff.
Case: Cataldo v. Herrmann, NY Slip Op 06920 (2d Dep't October 4, 2017)
Here is the decision.
