The following papers were read on this motion: Notice of Motion, Affirmation in Support, Exhibits 1 Affidavit in Opposition 3 Upon the foregoing papers, defendant Davie Persaud’s motion for an Order pursuant to CPLR §3211[5] dismissing plaintiff’s complaint as barred by the applicable statute of limitations, is determined, as hereinafter provided. Factual and Procedural Background This action commenced by plaintiff, pro se, on August 5, 2021, stems from a physical altercation alleged to have occurred on September 15, 2019. Plaintiff alleges that while they were attending a party at a third party’s home located at 3 Covey Court, Glen Head, New York on that date, defendant struck plaintiff with a closed fist on the back of her neck without any provocation from plaintiff. Plaintiff alleges further that she had previously injured her neck in a motor vehicle accident and that as a result she had a plate inserted in the of her neck. She states that defendant was aware of plaintiff’s condition prior to the altercation. Plaintiff states that she filed a police report, with the Old Brookville Police Department and that based on the report, defendant was arrested and charged with a violation of Penal Law §120.00, Assault in the Third Degree, a misdemeanor, and that a criminal proceeding is pending in Nassau County under case no. CR-026875-19-A. Plaintiff asserts a cause of action for injuries, pain and suffering. Defendant moves to dismiss plaintiff’s complaint on statute of limitations grounds. She argues that this action, based upon an intentional tort, is subject to a one year statute of limitations as set forth in CPLR §215[3]. Defendant contends that the action, commenced on August 5, 2021, which is more than one year after the alleged incident of September 15, 2019, is time barred. In opposition, plaintiff, pro se, argues that the filing of the complaint was delayed by the pandemic lockdown. She also argues that suit is timely pursuant to CPLR §213-b pertaining to actions by victims of a criminal offense. She contends that the criminal case against defendant is pending and has only been delayed due to the pandemic. She states that she has spoken with the Nassau County District Attorney’s Office and has been assured that the case is being prosecuted. Plaintiff claims that conviction is assured, and that pursuant to CPLR § 213-b, an action for injury or loss by a crime victim is timely if commenced within seven years of the date of the crime. Discussion and Ruling The Court shall first address the one year statute of limitations pursuant to CPLR §215[3] for intentional torts. Plaintiff’s cause of action accrued on September 15, 2019. The statute of limitations was tolled by the series of Executive Orders1 issued by the Governor during the COVID-19 pandemic, from March 20, 2020 until November 3, 2020. Those Executive Orders effectively stopped the clock on the running of the statute of limitations until November 4, 2020. From September 15, 2019 until March 20, 2020, 187 days had run, and 178 days remained in order to commence an action within the one year statute of limitations. On November 4, 2020 the toll ended, the remaining 178 days began to run again, and the statute of limitations expired on May 10, 2021. As discussed above, this action was not commenced until August 5, 2021. Based upon the foregoing, this action was not commenced within one year from when the cause of action accrued, and thus the action is not timely pursuant to CPLR §215[3]. The Court next turns to a discussion of CPLR §213-b which provides, in pertinent part: [A]n action by a crime victim…may be commenced to recover damages from a defendant…convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime…. In order for CPLR §213-b to be applicable, plaintiff must establish that (1) the plaintiff is a crime victim, (2) the defendant has been convicted of a crime, (3) the defendant’s crime is the subject of the civil action, and (4) the plaintiff’s injury resulted from that crime (City of New York v. Coll. Point Sports Ass’n, Inc., 61 AD3d 33, 40 [2d Dept 2009]; citing Elkin v. Cassarino, 248 AD2d 35, 40 [2d Dept 1998]; Boice v. Burnett, 245 AD2d 980, 981 [3d Dept 1997]). Here, plaintiff acknowledges that defendant has not yet been convicted of a crime. Even though plaintiff asserts that there is no doubt that defendant will be convicted of the misdemeanor assault charge that she is charged with, until there is a conviction, plaintiff cannot rely upon CPLR §213-b. Accordingly, and based upon all of the foregoing, defendant’s motion to dismiss is GRANTED, and plaintiff’s complaint is DISMISSED. This constitutes the Decision and Order of this Court. Dated: December 23, 2021
