General
David W. Buckley, Appellant-Respondent, v. Lever Brothers Company, Respondent-Appellant
294 A.D.2d 126740 N.Y.S.2d 875·New York Supreme Court, Appellate Division·2002·NY
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Opinion
David W. Buckley, Appellant-Respondent, v Lever Brothers Company, Respondent-Appellant.
[740 NYS2d 875]
[MAJORITY]
—Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered November 14, 2001, dismissing the complaint, and bringing up for review the order, same court and Justice, entered November 7, 2001, which granted defendant’s motion, pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs. Appeal from the November 7, 2001 order, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
While the motion court, for the reasons stated, properly dismissed the amended complaint for failure to state a cause of action, defendant’s motion to dismiss could have been granted upon the alternative ground that the complaint was time barred. CPLR 208, the tolling provision that would govern under the circumstances alleged, only permits the applicable limitations period to be tolled for up to 10 years from the date of accrual. Accordingly, since plaintiffs claims accrued in January 1972, his complaint, served in 1998, was time barred, even if plaintiff is accorded the benefit of the maximum toll available. Concur—Williams, P.J., Nardelli, Saxe, Rosenberger and Marlow, JJ.