Suffolk County Pub. Admr. v. Davin's Funeral Home, Inc.

Opinion

Suffolk County Pub. Admr. v Davin's Funeral Home, Inc.

2026 NY Slip Op 05207

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Suffolk County Public Administrator, etc., appellant,

v

Davin's Funeral Home, Inc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-08527, (Index No. 622054/23)

Lara J. Genovesi, J.P.

Barry E. Warhit

Laurence L. Love

Susan Quirk, JJ.

Mallilo & Grossman, Flushing, NY (Francisco J. Pomara, Jr., of counsel), for appellant.

Christopher J. Clayton, County Attorney, Hauppauge, NY (Diana T. Bishop of counsel), for respondent County of Suffolk.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 1, 2024. The order, insofar as appealed from, (1) granted that branch of the motion of the defendants Davin's Funeral Home, Inc., and Richard M. Davin, Sr., joined by the defendant Town of Brookhaven, which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendant Town of Brookhaven, (2) granted the motion of the defendant County of Suffolk pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it, and (3) denied those branches of the plaintiff's separate cross-motions which were to deem the complaint timely served nunc pro tunc or, in the alternative, for an extension of time to serve the summons and complaint upon the defendants.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendants Davin's Funeral Home, Inc., and Richard M. Davin, Sr., joined by the defendant Town of Brookhaven, which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendant Town of Brookhaven is denied, the motion of the defendant County of Suffolk pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it is denied, and those branches of the plaintiff's separate cross-motions which were to deem the complaint timely served nunc pro tunc or, in the alternative, for an extension of time to serve the summons and complaint upon the defendants are denied as academic.

In November 2016, David Alacqua (hereinafter the decedent) commenced an action (hereinafter the 2016 action) against the defendants, Davin's Funeral Home, Inc., Richard M. Davin, Sr. (hereinafter together the Davin defendants), Town of Brookhaven, and County of Suffolk, to recover damages for personal injuries he allegedly sustained on July 17, 2016. The decedent died on January 12, 2019. In an order dated March 3, 2023, the Supreme Court directed dismissal of the 2016 action without prejudice "for failure to timely appoint an administrator for [the decedent]" (hereinafter the order of dismissal).

In September 2023, the plaintiff commenced this action against the defendants to recover damages for personal injuries. The Davin defendants subsequently moved, as joined by the [*2]Town, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the Town as time-barred. The County moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred. The plaintiff opposed the defendants' respective motions and filed separate cross-motions, among other things, to deem the complaint timely served nunc pro tunc or, in the alternative, for an extension of time to serve the summons and complaint upon the defendants. In an order dated August 1, 2024, the Supreme Court, inter alia, granted that branch of the Davin defendants' motion, joined by the Town, granted the County's motion, and denied those branches of the plaintiff's separate cross-motions. The plaintiff appeals.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" (Goodman v Skanska USA Civ., Inc., 169 AD3d 1010, 1011; see Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405). "Pursuant to CPLR 214(5), an action to recover damages for personal injuries is generally subject to a three-year statute of limitations" (Ruiz v Sanchez, 219 AD3d 1363, 1363). Here, the Town and the County met their prima facie burden by demonstrating that the statute of limitations began to run on July 17, 2016, when the alleged accident occurred, and that this action was commenced in September 2023, more than seven years later (see Goodman v Skanska USA Civ., Inc., 169 AD3d at 1011).

In opposition, however, the plaintiff established that this action was timely commenced based upon the savings provision of CPLR 205(a). CPLR 205(a) provides, in part, that "[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."

Here, the requirements of CPLR 205(a) have been satisfied. Contrary to the contention of the County and the Town, the date of the order of dismissal was not the date the 2016 action terminated for purposes of CPLR 205(a) (see HSBC Bank USA, N.A. v St. Hillaire, ____ AD3d ____, 2026 NY Slip Op 00353). The record reflects that the 2016 action terminated in April 2023. Since this action was commenced, and service upon the Town and the County was effectuated, in September 2023, less than six months from the termination of the 2016 action, this action was timely commenced against the Town and the County (see id.). Accordingly, the Supreme Court should have denied that branch of the Davin defendants' motion, joined by the Town, which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the Town and the County's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it.

In light of our determination, this Court need not reach the plaintiff's remaining contentions.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court