Parris v Hirtenfeld
Annotate this CaseDecided on May 18, 2005
Supreme Court, Kings County
Charles Parris, Plaintiffs,
against
Agnes Hirtenfeld and DENNIS HIRTENFELD, Defendant
30951/97
Francois A. Rivera, J.
Defendant moves, pursuant to CPLR § 3211 (a)(5) to dismiss the plaintiff's complaint as barred by the Statute of Limitations. Plaintiff opposes the defendant's motion contending that the action was timely commenced.
On January 17, 1997, plaintiff filed a summons with notice in the King's County Clerk's Office. On May 19, 1997, the action was dismissed. On September 8, 1997, the plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. Plaintiff served the summons and verified complaint on the defendants three days later and filed an affidavit of service of same with the Kings County Clerk's Office the day after serving the defendants.
Defendant moves to dismiss the plaintiff's complaint pursuant to CPLR§ 3211(a)(5), contending that the action was not timely commenced. Resolution of the issue requires review of the applicable statute of limitation, the applicable tolling provisions, the method of commencing the actions, and the proper computation of all these interrelated factors. In 1992, the method of commencing an action in New York Supreme and County Courts was changed by the Legislature from a commencement-by-service to a commencement-by-filing system making the payment of a filing fee and filing of the initiatory papers the acts that commence an action (Gershel v. Porr, 89 NY2d 327 [1996]).
CPLR Rule 3211(a)(5) provides in pertinent part:
A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds.
Generally, the statute of limitations begins to run the day after a cause of action accrues [*2](Gen. Constr. L. § 20). A personal injury cause of action based on negligence accrues when an injury is sustained (Vigilant Ins. Co. of America v. Housing Authority of City of El Paso 87 NY2 36, 44 [1995]; see also Commissioners of State Insurance Fund v. Photocircuits Corp., 2 Misc 3d 300 [NY Sup 2003]). If the day the statute of limitations is set to expire is a Saturday, Sunday, or public holiday, the last day to commence the action becomes the next succeeding business day (Gen. Constr. L. § 25- a). Plaintiff's verified complaint alleges that on January 18, 1994, he was personally injured by defendants' negligent operation of a motor vehicle. Pursuant to CPLR §214(5), the applicable statute of limitations on a personal injury based on negligence such as the one the plaintiff sustained is three (3) years.
Plaintiff's alleged injuries were sustained on January 18, 1994. Three years from that date would be January 18, 1997. Since that date fell on a Saturday, the statute of limitation would have expired on Monday, January 20, 1997, the next succeeding business day. The plaintiff filed a summons with notice on January 17, 1997, three days before the statute of limitations was to expire. On May 19, 1997, the plaintiff's action was dismissed. On September 8, 1997, plaintiff recommenced the instant action. It is this recommenced action which is the subject of the instant motion. In the absence of authority permitting revival of the action, the plaintiff's cause of action would be time barred pursuant to CPLR §214(5). CPLR § 306-b, as amended effective January 1, 1998, provides that with the exception of election law cases, the service of the summons and complaint, summons with notice...or petition shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice...or petition. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.
However inasmuch as the cause of action at bar was commenced on January 17, 1997 and recommenced on September 17, 1997, the current statute is not applicable. Instead we must look to the applicable predecessor statute, namely, CPLR §306-b (a) & (b).
Former CPLR §306-b (a), stated, in pertinent part: Proof of service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be filed with the clerk of the court within one hundred and twenty days after the date of filing of the summons and complaint...If proof of service is not filed and there has been no appearance by the defendant within the time provided in this section for filing proof of service, the action or third-party action shall be deemed dismissed as to the non-appearing party with respect to whom no proof of service has been filed, without prejudice and without costs.
Former CPLR §306-b (b) stated, in pertinent part: If an action for failure to file proof of service pursuant to this section or for a failure to [*3]effect proper service, was timely commenced, the plaintiff may commence a new action, despite the expiration of the statute of limitations, after the commencement of the original action, upon the same transaction or occurrence or series of transactions or occurrences within one hundred twenty days of such dismissal provided that service upon defendant is effected within one hundred twenty day period.
When the commencement by filing system was introduced, CPLR §306-b then, as now, required that process be served within a 120-day time period. The former version of the statute, however, contained the additional requirement that proof of service be filed within the 120-day period. An action was deemed dismissed without prejudice if proof of service was not timely filed (Former CPLR§ 306-b[a]). Such dismissal was automatic; no motion by the defendant was necessary. This harsh consequence was mitigated, however, by the provision that permitted recommencement of the action and new service of process within a second 120-day period running from the date of the automatic dismissal (McKinney's Commentaries C306-b); Former CPLR §306-b[b]; Bloomer v Altman, 264 AD2d 795 [2nd Dept. 1999]).
The recommencement option was a matter of right and could be utilized even if the statute of limitations expired after the original commencement. The recommencement privilege was also available for dismissals based on improper service of process (see Zaleski v Mlynarkiewicz, 255 AD2d 379 [2nd Dept. 1998]).
The former version of CPLR §306-b was repealed and replaced with the current CPLR §306-b, which is applicable to actions commenced on or after January 1, 1998. The revised version of CPLR §306-b is not retroactive. The 120-day recommencement option of the former CPLR §306-b(b) is controlling here. It is a benefit that accrues to plaintiffs whose actions were commenced while the old system was still operative.
Although it is not indicated why the action was dismissed, the court takes notice that a dismissal for ineffective service was automatic under the former CPLR §306-b. The former CPLR §306 governs this matter because the action was commenced prior to January 1, 1998. The plaintiff, pursuant to the former CPLR §306-b(b), recommenced the action by filing and serving a summons and complaint, and filing the affidavits of service on September 12, 1997, within 120 days of the dismissal. The summons and complaint named the same defendants as the original summons with notice. Defendant contends that the original summons with notice was deficient because it did not state the nature of the action, the relief sought, and the damages requested. Defendant also contends that due to these deficiencies, plaintiff is incapable of establishing that the instant action is indeed a recommencement of the prior action.
The court does not find that the deficiencies, if any, are relevant to the application of former CPLR §306. While it is indeed correct that this action, originally commenced with a summons with notice, did not reveal or articulate the substance of the underlying action, this fact is not controlling. Plaintiff's assertion that it is the same occurrence shifts the burden to the defendant to establish the contrary. Furthermore, there is no language within the former provision of CPLR §306 which limits or restricts the right to recommence an action based on the method plaintiff chose to originally commence the action. The plaintiff's authority to [*4]recommence the action pursuant to former CPLR §306 was a matter of right. The court finds that the plaintiff complied with the requirements of former CPLR §306-b(b) by recommencing his action within 120 days of the dismissal.
The defendant's motion to dismiss the plaintiff's complaint as untimely is therefore denied.
The foregoing constitutes the decision and order of the court.
______________________
J.S.C.
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