Erickson v. YMCA of Nyack

Appellate Division of the Supreme Court of New York

Erickson v. YMCA of Nyack

108 A.D.2d 720, 484 N.Y.S.2d 886, 1985 N.Y. App. Div. LEXIS 43059

Appellate Division of the Supreme Court of the State of New York·Decided February 4, 1985·Published

Opinion

In an action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Rockland County (Marbach, J.), dated March 16, 1984, which granted defendant’s motion to dismiss the complaint as time barred.

Order affirmed, with costs.

Special Term correctly found unavailing plaintiff’s attempts to couch his personal injury claim in terms of a breach of contract or breach of warranty against the defendant. The record clearly shows that the essence of this matter is the plaintiff’s claim to recover damages for personal injuries incurred as a result of an allegedly defective condition of the defendant’s gymnasium floor. Hence, this case is governed by the three-year Statute of Limitations period provided in CPLR 214 (5) (Sears, Roebuck & Co. v Eneo Assoc., 43 NY2d 389; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669; Davis v St. Joseph’s Children’s Servs., 99 AD2d 960; Baratía v Kozlowski, 94 AD2d 454; Marie v European Health Spas, 79 AD2d 749). Inasmuch as this action was commenced more than five years after plaintiff’s accident, it was properly dismissed. Thompson, J. P., Brown, Niehoff and Lawrence, JJ., concur.

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In an action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Rockland County (Marbach, J.), dated March 16, 1984, which granted defendant’s motion to dismiss the complaint as time barred.

Order affirmed, with costs.

Special Term correctly found unavailing plaintiff’s attempts to couch his personal injury claim in terms of a breach of contract or breach of warranty against the defendant. The record clearly shows that the essence of this matter is the plaintiff’s claim to recover damages for personal injuries incurred as a result of an allegedly defective condition of the defendant’s gymnasium floor. Hence, this case is governed by the three-year Statute of Limitations period provided in CPLR 214 (5) (Sears, Roebuck & Co. v Eneo Assoc., 43 NY2d 389; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669; Davis v St. Joseph’s Children’s Servs., 99 AD2d 960; Baratía v Kozlowski, 94 AD2d 454; Marie v European Health Spas, 79 AD2d 749). Inasmuch as this action was commenced more than five years after plaintiff’s accident, it was properly dismissed. Thompson, J. P., Brown, Niehoff and Lawrence, JJ., concur.

Erickson v. YMCA of Nyack, 108 A.D.2d 720, 484 N.Y.S.2d 886, 1985 N.Y. App. Div. LEXIS 43059 (N.Y. Ct. App. 1985).

Pincite

108 A.D.2d 720 (Erickson v. YMCA of Nyack) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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