Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513.įootnote 1:Specifically, defendants reference Executive Order No. The original of this Decision and Order has been e-filed by the Court. ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied. ORDERED that defendants shall serve an answer on plaintiff within thirty (30) days of service of a copy of this Decision and Order with notice of entry thereon and it is further ORDERED that defendants' pre-answer motion to dismiss is denied in its entirety and it is further Therefore, having considered NYSCEF documents 1 through 9, 11, 13 and 14, it is hereby Commencement of the action on Februis therefore timely.īased upon the foregoing, defendants' motion to dismiss is denied in its entirety.ĭefendants are hereby directed to serve an answer on plaintiff within thirty (30) days of service of a copy of this Decision and Order with notice of entry thereon. With the statute of limitations tolled for 228 days from Mawhen the first executive order was issued - to November 3, 2020, this action had to be commenced on or before March 29, 2021. To the extent that no other Appellate Division has issued a decision on the issue, the Court is bound by the findings in Brash (see Mountain View Coach Lines v. at 585), and that the Governor was authorized under Executive Law § 29-a (2) (d) to toll these time limitations (see id.
Plaintiff further contends that the Governor was authorized to toll the statute of limitations under Executive Law § 29-a (2) (d), which provides that an executive order "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions."įollowing the return date of the motion, the Appellate Division, Second Department issued its decision in Brash v Richards (195 AD3d 582 ) (hereinafter Brash) finding that "the subject executive orders tolled the time limitation" contained in the CPLR (id.
KING NEPTUNES LOGIN SERIES
Plaintiff, on the other hand, contends that the series of executive orders tolled the statute of limitations and, as such, the statute of limitations in this case did not expire until Maafter the action was commenced. In this regard, defendants further contend that Executive Law § 29-a (1) - which provides that the Governor "may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency" - authorizes only the suspension of statutes of limitations. Presently before the Court is defendants' pre-answer motion to dismiss on the grounds that the action is barred by the statute of limitations (see CPLR 3211 ).ĭefendants contend that the statute of limitations in this action - which would have expired on Augwas suspended until Novemunder a series of executive orders issued by former Governor Andrew Cuomo as a result of the COVID-19 pandemic,Īnd that the action must be dismissed because it was not commenced until February 3, 2021. On August 13, 2017, defendant's employee allegedly ejected a patron from the nightclub "in such a manner that he was caused to strike the plaintiff thereby causing the plaintiff to sustain personal injuries." Plaintiff thereafter commenced this action on Februto recover for these injuries. Ury, of counsel), for defendants.ĭefendant King Neptunes NY, LLC (hereinafter defendant) owns and operates a nightclub located at 1 Kurosaka Lane in the Village of Lake George, Warren County. O'Connell and Aronowitz, Albany (Pamela A. 2" the names of the last two, defendants being fictitious and unknown to Plaintiff, it being intended to designate employees, agents and/or servants of KING NEPTUNES NY, LLC and/or KING NEPTUNES NY, LLC d/b/a KING NEPTUNE'S, Defendants. King Neptunes NY, LLC, KING NEPTUNES NY, LLC d/b/a KING NEPTUNE'S and "JOHN DOE No. This opinion is uncorrected and will not be published in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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