Chmiel Wins Appeal, Affirming Dismissal of Case

March 2016 — In the matter of Roger Feller and Sherri Feller vs. Earth Leasing, LLC and Alliance Contracting, LLC, we represented the defendants in a case involving a construction accident. Although the accident took place in 2006, the plaintiffs did not commence the lawsuit against our clients until 2010; nearly fourteen months after the applicable statute of limitations had expired.

We immediately brought a motion to dismiss based upon the plaintiffs’ failure to commence in a timely fashion. The plaintiffs, in turn, replied by alleging that Roger Feller was “insane” such that he would be justified to an extension of the statute of limitations pursuant to CPLR §208.

Justice John Michalski ordered a hearing to follow so that this issue could be decided. We were able to introduce evidence that Feller, during the time that he was allegedly “insane”, was actually conversing with his attorneys on a regular basis. We also demonstrated that he was able to meet with and discuss his medical treatment with several physicians during the applicable time period. During the eventual hearing, Feller’s expert neuropsychologist was forced to admit on cross-examination that Roger Feller was capable of “answering anyone’s questions”, including that of an attorney.

In order to meet this standard, it was the plaintiff’s burden to demonstrate that his “insanity” rendered him “unable to protect his legal rights because of an overall inability to function in society”. Justice Michalski found that the plaintiffs failed to meet this burden and dismissed the case.

On March 18, 2016, the Appellate Division, Fourth Department, unanimously affirmed Justice Michalski’s decision in a memorandum opinion. Specifically, the Appellate Division found that Justice Michalski’s determination was “well supported in the record”.

Michael J. Chmiel conducted the hearing, and eventually wrote and argued the appeal. If you have any questions regarding this case, do not hesitate to contact him at

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