Duran v. Mendez , 716 N.Y.S.2d 595 ( 2000 )

—In an action to recover damages for legal malpractice, the defendant Joseph Greene appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated January 3, 2000, which denied his motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint and all cross claims insofar as asserted against him.

Ordered that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

On this motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), the appellant met his initial burden of establishing prima facie that the time to commence an action against him had expired. In opposition, the plaintiff failed to “ 'aver evidentiary facts’ establishing that the case falls within an exception to the Statute of Limitations” (Assad v City of New York, 238 AD2d 456, 457, quoting Siegel v Wank, 183 AD2d 158, 159). Accordingly, the Supreme Court erred in denying the appellant’s motion for summary judgment (see, Glamm v Allen, 57 NY2d 87; Goicoechea v Law Offs, of Stephen R. Kihl, 234 AD2d 507; Tal-Spons Corp. v Nurnberg, 213 AD2d 395). O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.