Appellate Division of the Supreme Court of New York, 2012

Zaborowski v. Local 74, Service Employees International Union

Appellate Division of the Supreme Court of New York · Decided January 17, 2012

91 A.D.3d 768; 936 N.Y.2d 575

Cases that cite this one

35 later published cases cite this decision. The 25 that cite it most often are listed here.

Wells Fargo Bank, N.A. v. Eitani (Appellate Division of the Supreme Court of New York 2017)
Kotlyarsky v. Abrazi (Appellate Division of the Supreme Court of New York 2020)
Cadlerock Joint Venture, L.P. v. Trombley (Appellate Division of the Supreme Court of New York 2020)
EB Brands Holdings, Inc. v. McGladrey, LLP (Appellate Division of the Supreme Court of New York 2017)
Beroza v. Sallah Law Firm, P.C. (Appellate Division of the Supreme Court of New York 2015)
Alizio v. Ruskin Moscou Faltischek, P.C. (Appellate Division of the Supreme Court of New York 2015)
Kitty Jie Yuan v. 2368 West 12th Street, LLC (Appellate Division of the Supreme Court of New York 2014)
Lake v. New York Hosp. Med. Ctr. of Queens (Appellate Division of the Supreme Court of New York 2014)
Griffin v. Perrotti (Appellate Division of the Supreme Court of New York 2014)
Beizer v. Hirsch (Appellate Division of the Supreme Court of New York 2014)
Beizer v. Hirsch (Appellate Division of the Supreme Court of New York 2014)
Reid v. Incorporated Village of Floral Park (Appellate Division of the Supreme Court of New York 2013)
Reid v. Incorporated Village of Floral Park (Appellate Division of the Supreme Court of New York 2013)
Landow v. Krauss (Appellate Division of the Supreme Court of New York 2013)
Landow v. Krauss (Appellate Division of the Supreme Court of New York 2013)
Champion Mtge. Co. v. Antoine (Appellate Division of the Supreme Court of New York 2023)
Der Velde v. New York Prop. Underwriting Assn. (Appellate Division of the Supreme Court of New York 2022)
Federal Natl. Mtge. Assn. v. Jeanty (Appellate Division of the Supreme Court of New York 2020)
Goodman v. Skanska USA Civ., Inc. (Appellate Division of the Supreme Court of New York 2019)
Ventures Trust 2013-I-H-R v. Chitbahal (Appellate Division of the Supreme Court of New York 2018)
Matter of Linder (Appellate Division of the Supreme Court of New York 2017)
Doukas v. Ballard (Appellate Division of the Supreme Court of New York 2016)
Coleman v. Wells Fargo & Co. (Appellate Division of the Supreme Court of New York 2015)
Williams-Guillaume v. Bank of America, N.A. (Appellate Division of the Supreme Court of New York 2015)
Williams-Guillaume v. Bank of America, N.A. (Appellate Division of the Supreme Court of New York 2015)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In April 2010, the plaintiff commenced an action in federal district court against, among others, the appellant, alleging, inter alia, breach of the duty of fair representation. Thereafter, the federal action was voluntarily discontinued pursuant to a stipulation of discontinuance. In September 2010, the plaintiff commenced this action, similarly alleging that the appellant had breach its duty of fair representation. The Supreme Court denied the appellant’s motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against it as time-barred and for failure to state a cause of action, respectively.

“On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute of limitations grounds, the moving defendant *769must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011]; see Rakusin v Miano, 84 AD3d 1051, 1052 [2011]).

Here, in opposition to the appellant’s prima facie showing that the time in which to commence this action has expired, the plaintiff failed to raise an issue of fact as to whether the statute of limitations was tolled pursuant to CPLR 205 (a). CPLR 205 (a) is not applicable to the instant case, since the plaintiffs similar and timely commenced federal action was terminated by means of a voluntary discontinuance pursuant to a stipulation which contains no express statement of intent to preserve the right to commence a new action (see Naval v Lehman Coll., 303 AD2d 662 [2003]; Kourkoumelis v Arnel, 238 AD2d 313 [1997]; cf. George v Mt. Sinai Hosp., 47 NY2d 170, 180 [1979]).

Accordingly, the Supreme Court should have granted that branch of the appellant’s motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred. Rivera, J.B, Roman, Sgroi and Cohen, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.