DECISION/ORDER Upon consideration of the papers filed in NYSCEF (Doc. Nos. 13-33), relative to the motion by defendants George A. Fuller Company, Inc. (GAFCO), Renaissance Condominium Partners LLC (RCP), and LC Main, LLC (LCMain) (together defendants) for dismissal on the grounds that the alleged causes of action are barred by the three-year statute of limitations (CPLR 3211 [a] [5]), the Court determines as follows: Preliminarily, in the affirmation in support (NYSCEF Doc. No. 14), defendants add that dismissal should be granted for failure to serve GAFCO with the summons (CPLR 3211 [a] [8]). In a stipulation entered into by the parties on December 1, 2022 (NYSCEF Doc. No. 23), the parties agreed that defendants would not assert a defense based upon improper service of process. In their memorandum of law (NYSCEF Doc. No. 25), defendants ask that the stipulation be disregarded because plaintiff has not provided any proof of service on GAFCO. However, the failure to file an affidavit of service with the court is generally a procedural irregularity which may be cured (see Deb v. Hayut, 171 AD3d 862, 863 [2d Dept 2019]) and is not a basis to disregard the stipulation entered into by the parties (see Lynx Asset Servs., LLC v. Nestor, 210 AD3d 433 [1st Dept 2022]). As noted in the memorandum of law (NYSCEF Doc. No. 25), defendants were involved with the development of the Ritz Carlton Condominium project located in White Plains, in Westchester County. Plaintiff alleges that on August 1, 2018, a six-inch domestic water pipe failed, causing damage to the building including the residences of Linda Rosenblum (Rosenblum), and Adrienne Gray and Barry Gray (Grays). The claims against GAFCO are for negligence (third cause of action) and gross negligence (fourth cause of action); against RCP and LCMain for negligence (fifth cause of action); and against all defendants for nuisance (seventh cause of action). Defendants contend that the statute of limitations expired on August 1, 2021. This action was commenced by filing on September 8, 2021. Defendants argue that plaintiff’s causes of action are barred by the expiration of the applicable three-year statute of limitations (CPLR 214 [4]) and should be dismissed pursuant to CPLR 3211 (a) (5). In the affirmation in opposition (NYSCEF Doc. No. 29), plaintiff asserts that the incident resulted in substantial water damage. Plaintiff seeks to recover the insurance payments it made to Rosenblum and the Grays. Plaintiff agrees that this is a negligence action, subject to a three-year statute of limitations; that the action accrued on August 1, 2018; and that the action was commenced on September 8, 2021. However, plaintiff relies on the series of executive orders that stayed the statute of limitations for a period of time beyond August 1, 2021, making the commencement of the action on September 8, 2021, timely. In reply (NYSCEF Doc. No. 33), defendants argue that the three-year statute of limitations is applicable (CPLR 214 [4]); that no uniform rule has been established; that there is no authority shown that excused plaintiffs untimely commencement of its case, when the statute of limitations commenced and concluded outside of the period covered by the executive orders; and that plaintiff had an opportunity to bring its action within the remaining time during the three years afforded by the statute of limitations. Defendants discount plaintiffs reliance on the executive orders issued during the Covid pandemic (9 NYCRR §§ 8.202.8, 14, 28, 38, 48, 55, 55.1, 60, 67, 72), which tolled the statute of limitations for 228 days from March 20, 2020 to November 3, 2020, and plaintiff’s assertion that the executive orders provided a blanket 228-day extension of time for all statute of limitation periods that ran during the applicable period. Defendants argue that the statute of limitations commenced on August 1, 2018, prior to the suspension, and ended outside the suspension period on August 1, 2021, having no effect on plaintiffs ability to bring the action timely. Defendants view is that the orders did not serve to just add 228 days to any post-November 3, 2020, statute of limitations, which defendants contend was a suspension and not a toll. Defendants believe that plaintiffs interpretation is a mischaracterization of the orders and current case law. On a motion to dismiss, pursuant to CPLR 3211 (a) (5), asserting a cause of action is barred by the statute of limitation, the burdens shift, as follows: a defendant must establish, prima facie, that the time within which to sue has expired; then the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or that the plaintiff actually commenced the action within the applicable limitations period (see MP v. Davidsohn, 169 AD3d 788, 789-790 [2d Dept 2019]; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1085-1086 [2d Dept 2016]; Yang v. Oceanside Union Free School Dist., 90 AD3d 649 [2d Dept 2011]). The Court is required to accept the facts as alleged in the complaint as true and resolve all inferences in favor of the plaintiff (see Faison v. Lewis, 25 NY3d 220, 224 [2015]; Perez v. Baez, 185 AD3d 1062, 1063 [2d Dept. 2020]). CPLR 214 (4) provides that an action to recover damages for an injury to property must be commenced within three years. A cause of action accrues “‘when the damage [is] apparent (Alamio v. Town of Rockland, 302 AD2d 842, 844 [(3d Dept) 2003]; see Mandel v. Estate of Frank L. Tiffany, 263 AD2d 827 [(3d Dept) 1999]; Cranesville Block Co. v. Niagara Mohawk Power Corp., 175 AD2d 444 [(3d Dept) 1991]).” (Russell v. Dunbar, 40 AD3d 952, 953 [2d Dept 2007].) Here, it is not disputed that the cause of action accrued on August 1, 2018. In Brash v. Richards (195 AD3d 582 [2d Dept 2021]), the Court explained that the issue raised was “whether a series of executive orders issued by Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constitute a toll or, alternatively, a suspension of filing deadlines applicable to litigation in the New York courts.” The Court concluded that the executive orders constitute a toll of the filing deadlines. The Court stated: A toll suspends the running of the applicable period of limitation for a finite time period, and ‘[t]he period of the toll is excluded from the calculation of the [relevant time period] (Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020]; see Foy v. State of New York, 71 Misc 3d 605 [Ct Cl 2021]). ‘Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension (Foy v. State of New York, 71 Misc 3d at 608). In Foy v. State of New York (71 Misc 3d at 608), the Court determined that a toll, and not a suspension, was intended, and set forth how the time should be calculated: A toll suspends the running of the applicable period of limitation for a finite time period, in this instance, 30 days, and ‘the period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action. (Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020].) The amount of time covered by the original executive order and all extensions is 228 days. The number of days between when the claim accrued, February 18, 2020, and when claimant accomplished service on November 17, 2020, is 273 days. Subtracting the period of the toll, 228 days, from the period of time between accrual and service, 273 days, results in a difference of 45 days. Therefore, on November 17, 2020, 45 days remained before the expiration of time to serve and file the claim. The Court in Port Auth. of N.Y. & N.J. v. Amigo Tr. LLC (76 Misc 3d 1227[A], *2-3 [Sup Ct, NY County 2022]), interpreted Brash v. Richards as follows: As Brash explains, when a statutory limitations period, such as a defendant’s time to appear or respond, is tolled, the limitations ‘clock stops running for the duration of the toll. (195 AD3d at 582, citing Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020].) Where, as here, the event triggering the limitations period occurs while the toll is in effect, the limitations clock does not start running until the end of the tolled period; but it then runs as it otherwise normally would. Thus, in Brash, the triggering event (service of notice of entry of the order appealed from) occurred on October 2, 2020, during the COVID-19-tolled period. (Id. at 582.) Brash held that the time in which the plaintiff in that case could notice her appeal therefore began to run when the COVID-19 toll ended–i.e., that plaintiff had 30 days from November 3, 2020, to file the notice of appeal. (Id. at 585.) Brash v. Richards was distinguished in Baker v. 40 Wall St. Holdings Corp. (74 Misc 3d 381, 383-384 [Sup Ct, Kings County]), where the Court stated that “a toll stops the running of the applicable period of limitations for a finite time period, and the period of the toll is excluded from the calculation of the relevant limitations period.” In contrast, “a suspension does not exclude its duration from the calculation of the relevant time period. Rather, it simply delays the expiration of the time period or filing deadline until the end date of the suspension.” The Court determined that the order did not intend 228 days to be added to the statute of limitations “for every person with a claim who had not filed suit by March 20, 2020, and would also be added to every type of litigation deadline that arose during the suspension period.” The Court explained that with a suspension, “a party can only benefit from the executive orders if his or her statute of limitations or filing deadline fell within the suspension period.” Notwithstanding Brash v. Richards, the Court declared that the Governor imposed a suspension, not a toll. In Cruz v. Guaba (74 Misc 3d 1207[A] [Sup Ct, Queens County 2022]), the Court concluded that “the executive orders did not extend everyone’s statute of limitations period for an additional 228 days.” More recently, in McLaughlin v. Snowlift, Inc. (2023 WL 2396118 [2d Dept 2023]), the Court followed its prior determination and stated: “In Brash v. Richards, which was issued after the May 2021 order was issued, this Court held that the executive orders ‘constitute a toll of the filing deadlines applicable to litigation in New York courts (Brash v. Richards, 195 A.D.3d at 582; see Murphy v. Harris, 210 A.D.3d 410 [1st Dept 2022]; Matter of Roach v. Cornell Univ., 207 A.D.3d 931, 933 [3d Dept 2022]).” In Murphy v. Harris (210 AD3d at 411-412), a wrongful death action with a two-year statute of limitations, the claim accrued on September 30, 2018, and was tolled on March 20, 2020. The remaining six months and ten days started to run again after November 3, 2020, which made the commencement of that action on February 12, 2021, timely. Notwithstanding the determinations in the lower courts, this Court will use the calculation method in Murphy v. Harris, which was relied on by the Court in McLaughlin v. Snowlift, Inc., the most recent Second Department determination. Here, the statute of limitations is three years or 1,095 days. The action accrued on August 1, 2018, and on March 20, 2020, when the statute of limitations was tolled, 598 days had expired. The toll lasted until November 3, 2020, at which time the statute of limitations period continued, allowing plaintiff the remaining 497 days in which to commence the action. The action was commenced on September 8, 2021, 309 days after the end of the toll, making the commencement of the action timely. The remaining contentions do not require a different result. Accordingly, it is, ORDERED that defendants motion to dismiss is denied. The foregoing constitutes the Decision and Order of the Court. Dated: April 6, 2023
