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CIMINO v. DEMBECK

61 A.D.3d 802 (2009)

876 N.Y.S.2d 893

JAMES CIMINO, JR., Appellant, v. JOSEPH J. DEMBECK, JR., et al., Respondents.

Appellate Division of the Supreme Court of New York, Second Department.

Decided April 21, 2009.

Ordered that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred is denied.

On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Swift v New York Med. Coll., 25 A.D.3d 686

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