         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1504
CA 10-01567
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.


LILY LARKIN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER HOUSING AUTHORITY,
DEFENDANT-RESPONDENT.


LIPSITZ & PONTERIO, LLC, BUFFALO (JOHN NED LIPSITZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (ERNEST D. SANTORO OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered April 1,
2010. The order and judgment, granted defendant’s motion for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

      Memorandum: Plaintiff commenced this action seeking damages for
injuries allegedly caused by her exposure as a child to lead paint in
an apartment owned by defendant, a municipal housing authority. Prior
to discovery, defendant moved pursuant to CPLR 3211 and 3212 to
dismiss the complaint on statute of limitations grounds, contending
that the action was time-barred under General Municipal Law § 50-i (1)
because it was not commenced within one year and 90 days of
plaintiff’s 18th birthday, as tolled by CPLR 208 during the period of
plaintiff’s infancy. We conclude that Supreme Court erred in granting
the motion. In support of its motion insofar as it was based on CPLR
3211 (a) (5), defendant had “the initial burden of establishing prima
facie that the time in which to sue has expired” (Savarese v Shatz,
273 AD2d 219, 220; see Cimino v Dembeck, 61 AD3d 802), and thus was
required to “establish, inter alia, when the plaintiff’s cause of
action accrued” (Swift v New York Med. Coll., 25 AD3d 686).
Similarly, insofar as defendant sought summary judgment based on
statute of limitations grounds, defendant was required to “make a
prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of fact
from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,
853).
                                 -2-                          1504
                                                         CA 10-01567

     In support of its motion, defendant submitted only a copy of the
summons and complaint, neither of which indicated when plaintiff
discovered her alleged injuries or the date “when through the exercise
of reasonable diligence the injury should have been discovered” (CPLR
214-c [3]). Defendant thus failed to establish when plaintiff’s cause
of action accrued and, in the absence of such evidence, defendant was
unable to make a prima facie showing that the applicable statute of
limitations period had expired. In view of the fact that defendant
failed to meet its initial burden, the motion should have been denied
“regardless of the sufficiency of the opposing papers” submitted by
plaintiff (Alvarez v Prospect Hosp., 68 NY2d 320, 324). We reject
defendant’s contention that the court should have searched the record
and considered the evidence submitted by plaintiff in opposition to
the motion. Although defendant is correct that a court has the
authority to search the record and to grant relief to a nonmoving
party pursuant to CPLR 3212 (b), defendant has provided no authority
that allows a court to search the record and to grant relief to a
moving party where, as here, the moving party has failed to meet its
initial burden of proof.

     In any event, even assuming, arguendo, that defendant met its
initial burden on the motion, we conclude that plaintiff raised an
issue of fact whether the action was commenced within the requisite
one year and 90 days of “the date of discovery of the injury by the
plaintiff or on the date when through the exercise of reasonable
diligence the injury should have been discovered” (CPLR 214-c [3]).
Plaintiff asserted in an opposing affidavit that she did not discover
that she had elevated levels of lead in her blood until May 2008, and
that date falls within the statute of limitations period for
commencing this action. Finally, we note that “any inconsistency
between the [General Municipal Law § 50-h hearing] testimony of
[plaintiff] submitted in support of the motion and her affidavit
presents a credibility issue to be resolved at trial” (Palmer v
Horton, 66 AD3d 1433, 1434).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
