Schumaker v. Boehringer Mannheim Corp./DePuy , 707 N.Y.S.2d 581 ( 2000 )

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendant Boehringer Mannheim Corporation/ DePuy dismissed. Memorandum: Supreme Court erred in denying that part of the motion of Boehringer Mannheim Corporation and DePuy, Inc. (defendants), sued incorrectly as Boehringer Mannheim Corporation/DePuy, for summary judgment dismissing the complaint against them as time-barred. The complaint, filed April 7, 1998, asserted various causes of action arising out of allegedly defective hip prostheses that were implanted in 1988. Defendants established that the complaint was untimely, and thus met their initial burden of establishing their entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Plaintiff attempted to save the 1998 action by applying CPLR 205 (a). An earlier complaint containing the same causes of action, filed on March 25, 1996, had been dismissed by a different Supreme Court Justice pursuant to CPLR 3126, which provides penalties for refusal to disclose, but the order on the motion for penalties did not state that the dismissal was for neglect to prosecute. Assuming, arguendo, that the court properly determined that the earlier dismissal was not for neglect to prosecute within the meaning of CPLR 205 (a), we conclude that plaintiff, in opposition to defendants’ present motion, also had the burden pursuant to CPLR 205 (a) to show that the first action was timely commenced (see generally, Kramer v Herrera, 188 AD2d 1038, 1039, appeal dismissed and Iv denied 81 NY2d 993). She failed to provide actual accrual dates for the causes of action and thus failed to meet that burden (cf., Massie v Crawford, 78 NY2d 516, 519, rearg denied 79 NY2d 978). (Appeal from Order of Supreme Court, Cattaraugus County, Cosgrove, J. — Summary Judgment.) Present — Pine, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.