Government Development Bank for Puerto Rico v. Ernst & Young

Appellate Division of the Supreme Court of New York

Government Development Bank for Puerto Rico v. Ernst & Young

219 A.D.2d 467, 631 N.Y.S.2d 147, 1995 N.Y. App. Div. LEXIS 9176

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 7, 1995

StatusPublished

Cited by2 cases

This text of 219 A.D.2d 467 (Government Development Bank for Puerto Rico v. Ernst & Young) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Government Development Bank for Puerto Rico v. Ernst & Young, 219 A.D.2d 467, 631 N.Y.S.2d 147, 1995 N.Y. App. Div. LEXIS 9176 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered August 4, 1994, which granted reargument and, upon reargument, adhered to a prior decision denying defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, unanimously modified, on the law, to provide that the denial is without prejudice, and otherwise affirmed, without costs.

The IAS Court properly denied defendants’ motion to dismiss on Statute of Limitations grounds, as defendants did not show that, on the facts as alleged or as conceded by plaintiff, the action was time-barred. However, the timeliness of the action clearly depends on factual issues relating to the time at which the cause of action accrued. Because defendants had neither notice that the court would treat the motion as one for summary judgment pursuant to CPLR 3211 (c) nor an opportunity to explore the outstanding factual issues by way of discovery, the denial should have been without prejudice to further consideration of such factual issues, upon a motion by defendants for summary judgment, or, if necessary, at trial. Whether there should be expedited and limited discovery on the timeliness issue is a question that should be left to the IAS Court. Concur — Ellerin, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered August 4, 1994, which granted reargument and, upon reargument, adhered to a prior decision denying defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred, unanimously modified, on the law, to provide that the denial is without prejudice, and otherwise affirmed, without costs.

The IAS Court properly denied defendants’ motion to dismiss on Statute of Limitations grounds, as defendants did not show that, on the facts as alleged or as conceded by plaintiff, the action was time-barred. However, the timeliness of the action clearly depends on factual issues relating to the time at which the cause of action accrued. Because defendants had neither notice that the court would treat the motion as one for summary judgment pursuant to CPLR 3211 (c) nor an opportunity to explore the outstanding factual issues by way of discovery, the denial should have been without prejudice to further consideration of such factual issues, upon a motion by defendants for summary judgment, or, if necessary, at trial. Whether there should be expedited and limited discovery on the timeliness issue is a question that should be left to the IAS Court. Concur — Ellerin, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.

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Bluebook (online)

219 A.D.2d 467, 631 N.Y.S.2d 147, 1995 N.Y. App. Div. LEXIS 9176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/government-development-bank-for-puerto-rico-v-ernst-young-nyappdiv-1995.

Opinion

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