Robertson v. Motorola Communications & Electronics Inc.

299 A.D.2d 534, 750 N.Y.S.2d 507

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 2002
• Status: Published

Opinion

In an action to recover damages for loss of consortium, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated July 16, 2001, which granted the separate motions of the defendants Motorola Communications and Electronics Incorporated and New York City Transit Authority, inter alia, to dismiss the complaint insofar as asserted against them on the ground that it was barred by the statute of limitations.

Ordered that the order is affirmed, with one bill of costs.

On these motions, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a) (5), the respondents met their initial burden of establishing prima facie that the time to commence an action against them had expired (see Savarese v Shatz, 273 AD2d 219). In opposition, the plaintiff failed to “ ‘aver evidentiary facts’ establishing that the case falls within an exception to the [sjtatute of [1] imitations” (Assad v City of New York, 238 AD2d 456, 457, quoting Siegel v Wank, 183 AD2d 158, 159).

The parties’ remaining contentions are either without merit, improperly raised for the first time on appeal, or need not be reached in light of this determination. Krausman, J.P., Gold-stein, Townes and Rivera, JJ., concur.