Submitted - February 16, 2018
Silver, Bayside, NY, appellant pro se.
G. Sawyers, Melville, NY (Scott W. Driver of counsel), for
respondent Jennifer Silver.
Bartlett LLP, Mineola, NY (Robert G. Vizza and John Yoon of
counsel), for respondents Zucker Hillside Hospital, North
Shore/Long Island Jewish Health System/EMS, and North
Shore/Long Island Jewish Health System/ER.
M. LEVENTHAL, J.P. JEFFREY A. COHEN ROBERT J. MILLER JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to recover damages for false
imprisonment, the plaintiff appeals from a judgment of the
Supreme Court, Queens County (Peter J. O'Donoghue, J.),
entered April 19, 2016. The judgment, upon an order of the
same court entered March 10, 2016, granting the
defendants' separate motions pursuant to CPLR 3211(a) to
dismiss the complaint, is in favor of the defendants and
against the plaintiff dismissing the complaint.
that the judgment is affirmed, with one bill of costs payable
to the respondents appearing separately and filing separate
plaintiff alleges that on May 27, 2012, she was sitting
inside her car, which was parked outside her parents'
house in Queens, when police officers approached, asked her
questions, removed her from the car, and handcuffed her.
According to the plaintiff, the police then transported her
against her will to the emergency room of Long Island Jewish
Medical Center. She was then discharged from the emergency
room and, against her will, transferred to, and admitted by,
Zucker Hillside Hospital. The plaintiff further alleges that
her sister, Jennifer Silver, lied to the police to "put
me in the hospital."
24, 2013, the plaintiff commenced an action against Zucker
Hillside Hospital, North Shore/Long Island Jewish Health
System/EMS, and North Shore/ Long Island Jewish Health
System/ER (hereinafter collectively the hospital defendants)
and Jennifer Silver. The plaintiff asserted causes of action
to recover damages for false imprisonment, defamation,
intentional infliction of emotional distress, and violations
of 42 USC § 1983. By order entered September 12, 2014,
the Supreme Court, in effect, directed the dismissal of the
complaint pursuant to CPLR 3211(a)(8) for failure to
effectuate proper service.
28, 2015, the plaintiff commenced this action against the
same defendants and asserted the same causes of action that
were asserted in the prior action. Jennifer Silver and the
hospital defendants separately moved, inter alia, pursuant to
CPLR 3211(a)(5) to dismiss the causes of action to recover
damages for false imprisonment, defamation, and intentional
infliction of emotional distress as time-barred, and pursuant
to CPLR 3211(a)(7) to dismiss the cause of action alleging
violations of 42 USC § 1983 for failure to state a cause
of action. By order entered March 10, 2016, the Supreme Court
granted the defendants' motions pursuant to CPLR
3211(a)(5) and (7) to dismiss the complaint. On April 19,
2016, the court entered a judgment upon the order in favor of
the defendants and against the plaintiff dismissing the
complaint. The plaintiff appeals, and we affirm.
a motion to dismiss a cause of action pursuant to CPLR
3211(a)(5) on the ground that it is barred by the statute of
limitations, a defendant bears the initial burden of
establishing, prima facie, that the time in which to sue has
expired" (Cataldo v Herrmann, 154 A.D.3d 641,
642 [internal quotation marks omitted]; see Baptiste v
Harding-Marin, 88 A.D.3d 752, 753). The burden then
shifts to the plaintiff to raise a question of fact as to
whether the statute of limitations is tolled or is otherwise
inapplicable, or whether the plaintiff actually commenced the
action within the applicable limitations period (see
Bennie v Hudson Val. Ctr. at St. Francis, LLC, 115
A.D.3d 899, 900). "In considering the motion, a court
must take the allegations in the complaint as true and
resolve all inferences in favor of the plaintiff (Island
ADC, Inc. v Baldassano Architectural Group, P.C., 49
A.D.3d 815, 816; see Cataldo v Herrmann, 154 A.D.3d
the defendants established, prima facie, that the plaintiffs
causes of action to recover damages for false imprisonment,
defamation, and intentional infliction of emotional distress
were time-barred by the one-year statute of limitations for
intentional torts (see CPLR 215; Walker v
Estate of Lorch, 136 A.D.3d 805, 807;Melious v
Besignano, 125 A.D.3d 727, 728; Bellissimo v
Mitchell, 122 A.D.3d 560, 561). The plaintiff did not
commence this action until May 28, 2015, more than three
years after the subject incident.
opposition, the plaintiff failed to raise a question of fact
as to whether the statute of limitations was tolled or was
otherwise inapplicable, or whether she actually commenced the
action within the applicable limitations period. The
plaintiffs contention that the relation-back doctrine renders