April 25, 2013
TERESA SANCHEZ, APPELLANT,
NATIONAL RAILROAD PASSENGER CORP., &C., RESPONDENT, "ABC" CORP., &C., DEFENDANT.
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be reversed, with costs, and plaintiff's complaint reinstated.
Most personal injury claims are governed by a three-year statute of
limitations (see CPLR 214 ). Plaintiff has alleged that she was
injured while working at Penn Station on
February 10, 2005. She commenced this negligence action
against defendant National Railroad Passenger Corp. (Amtrak) and
another entity on February 6, 2008. Amtrak responded with an affidavit
by plaintiff's supervisor and purported business documents indicating
that the accident occurred on February 5, 2005. Based on that
evidence, Amtrak moved for summary judgment dismissing the complaint
on the ground that plaintiff's action was filed one day after the
limitations period expired. Plaintiff, in turn, relied on the facts
asserted in her complaint and bill of particulars. Both pleadings were
verified by plaintiff and she attested in her bill of particulars that
the accident happened "on February 10, 2005 at or about 2:30 p.m."
Additionally, plaintiff submitted records pertaining to her workers'
compensation claim, all of which listed February 10, 2005 as the date
of the incident.
Supreme Court granted Amtrak's motion and dismissed the complaint. The Appellate Division affirmed, concluding that the assertions in plaintiff's verified pleadings were insufficient to refute Amtrak's proof that the accident date was February 5, 2005 (see 92 AD3d 600 [1st Dept 2012]). Two dissenting Justices would have denied summary judgment because the verified pleadings raised an issue of fact regarding the date plaintiff sustained her injuries. Plaintiff now appeals as of right.
We agree with the dissenting Justices that summary judgment is not
warranted. Although Amtrak tendered sufficient
evidence to establish a prima facie showing of its
entitlement to judgment as a matter of law based on the expiration of
the statute of limitations (see generally Alvarez v Prospect
68 NY2d 320, 324 ), plaintiff proffered sufficient proof of a
material issue of fact as to the date of injury. CPLR 105 (u) allows
the verified complaint and bill of particulars to be considered as
affidavits (see e.g. Travis v Allstate Ins. Co., 280 AD2d 394, 394-395
[1st Dept 2001]). In those documents, plaintiff specifically recalled
that she was injured on February 10, 2005, which would render this
case timely commenced. The conflicting proof pertaining to the
incident date presents a question of fact that cannot be resolved in
the context of a summary judgment motion. Consequently, Amtrak's
motion must be denied and plaintiff is entitled to reinstatement of
Teresa Sanchez v National Railroad Passenger Corp., et al. No. 76
I would affirm the Appellate Division's order. The record, read as a whole, does not present a genuine issue of fact as to the date of the accident. While plaintiff's complaint alleged a February 10 accident date, plaintiff admitted at her deposition that she did not remember what day the accident happened. Thus, she failed to show that she could present proof, admissible at trial, that it happened on February 10. Order reversed, with costs, and plaintiff's complaint reinstated, in a memorandum. Chief Judge Lippman and Judges Graffeo, Read, Pigott and Rivera concur. Judge Smith dissents and votes to affirm in an opinion.
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