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. On a proper showing, the burden shifts to the nonmoving party to raise a question
of fact as to whether there is an applicable exception to the statute; as to whether the statute was tolled; or as
to whether the action was actually commenced within the applicable statutory period.
Berger v. Stolzenberg, NY Slip Op 01176 (2d Dep't February 2, 2018)
