Baptiste v. Doe

89 A.D.3d 436, 931 N.Y.2d 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2011
• Status: Published

Opinion

Since plaintiffs filing of this action was untimely, it was a nullity, “and there was no service period to extend” (Gonzalez v New York City Health & Hosps. Corp., 29 AD3d 369, 370 [2006]; Croce v City of New York, 69 AD3d 488 [2010]). In the absence of an action pending against them, defendants’ own tardiness in moving to “dismiss” did not constitute a waiver of the statute of limitations defense (see CPLR 3211 [e]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Friedman, J.E, Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.