Ali v. Moss

Appellate Division of the Supreme Court of New York

Ali v. Moss

35 A.D.3d 640, 827 N.Y.S.2d 260

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 19, 2006

StatusPublished

Cited by1 cases

This text of 35 A.D.3d 640 (Ali v. Moss) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ali v. Moss, 35 A.D.3d 640, 827 N.Y.S.2d 260 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 19, 2005, which denied their motion pursuant to CPLR 3211 to dismiss the complaint, inter alia, as time-barred, and granted the plaintiffs’ cross motion, among other things, to deem the complaint timely filed.

Ordered that the order is reversed, on the law, with costs, the motion to dismiss the complaint is granted, and the cross motion is denied.

The plaintiffs admittedly failed to commence this action by filing a summons with notice or a summons and complaint [641]*641within the relevant period of limitations (see Marino v Proch, 258 AD2d 628 [1999]; CPLR 214 [5]). Further, the plaintiffs failed to establish any basis to estop the defendants from interposing a statute of limitations defense (see Zumpano v Quinn, 6 NY3d 666 [2006]; Kiernan v Long Is. R.R., 209 AD2d 588 [1994]). Thus, as the plaintiffs raised no other basis to sustain the action, and the courts, in general, have no inherent power to extend a period of limitations in the interest of justice, the complaint should have been dismissed as time-barred (see Dioguardi v Glassey, 5 AD3d 430 [2004]; Marino v Proch, supra; CPLR 201).

In light of our determination, the parties’ remaining contentions have been rendered academic. Goldstein, J.E, Skelos, Lunn and Covello, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 19, 2005, which denied their motion pursuant to CPLR 3211 to dismiss the complaint, inter alia, as time-barred, and granted the plaintiffs’ cross motion, among other things, to deem the complaint timely filed.

Ordered that the order is reversed, on the law, with costs, the motion to dismiss the complaint is granted, and the cross motion is denied.

The plaintiffs admittedly failed to commence this action by filing a summons with notice or a summons and complaint [641]*641within the relevant period of limitations (see Marino v Proch, 258 AD2d 628 [1999]; CPLR 214 [5]). Further, the plaintiffs failed to establish any basis to estop the defendants from interposing a statute of limitations defense (see Zumpano v Quinn, 6 NY3d 666 [2006]; Kiernan v Long Is. R.R., 209 AD2d 588 [1994]). Thus, as the plaintiffs raised no other basis to sustain the action, and the courts, in general, have no inherent power to extend a period of limitations in the interest of justice, the complaint should have been dismissed as time-barred (see Dioguardi v Glassey, 5 AD3d 430 [2004]; Marino v Proch, supra; CPLR 201).

In light of our determination, the parties’ remaining contentions have been rendered academic. Goldstein, J.E, Skelos, Lunn and Covello, JJ., concur.

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Bluebook (online)

35 A.D.3d 640, 827 N.Y.S.2d 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ali-v-moss-nyappdiv-2006.

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