In determining the applicable limitations period, the court must look to the substance of the allegations rather than to the parties' characterization of those allegations. On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable 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. 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 is tolled or is otherwise inapplicable.
Haddad v. Muir, NY Slip Op 01780 (2d Dep't April 5, 2023)
