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STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE.

The Fourth Department reversed the dismissal of this Labor Law retaliatory discharge cause of action in the interest of justice. The two-year statute of limitations ended on a Saturday. The action was commenced on the next business day (a Tuesday following Columbus Day), rendering the action timely. The correct calculation had not been raised below or on appeal:

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Defendant failed to meet its initial burden of establishing that the statute of limitations period had expired … . Even assuming, arguendo, that plaintiff’s cause of action accrued on October 10, 2013, we note that the two-year statute of limitations period ended on a Saturday and therefore was extended until “the next succeeding business day” (General Construction Law § 25-a [1]…). Because Columbus Day fell on the Monday following that Saturday (see § 24), the next business day was October 13, 2015, the date on which the action was commenced. Plaintiff’s complaint therefore was timely.

Although plaintiff did not assert that calculation in opposing defendant’s motion before the motion court or on this appeal, we deem it appropriate to consider it sua sponte in the interest of justice … . As noted above, defendant had the burden of establishing that the statute of limitations period had expired, and it could not refute that such period was extended by operation of law to October 13, 2015 … . Wilson v Exigence of Team Health, 2017 NY Slip Op 04993, 4th Dept 6-16-17

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/STATUTE OF LIMITATIONS (CALCULATION, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/GENERAL CONSTRUCTION LAW (CALCULATION OF STATUTE OF LIMITATIONS, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/APPEALS (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)

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NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE... RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF.