Bellew v. City of New York

272 A.D.2d 104, 708 N.Y.S.2d 609, 2000 N.Y. App. Div. LEXIS 5430

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered December 31, 1998, which, upon granting plaintiffs’ motion for reargument, adhered to a prior order dismissing the complaint, but granted plaintiffs leave to re-plead, unanimously modified, on the law and the facts, to deny the motion to dismiss as against the first-named plaintiff only and reinstate the complaint as to that plaintiff only, and to grant the remaining 65 plaintiffs leave to re-file separate, individual complaints, and otherwise affirmed, without costs.

The complaint states a cause of action under amended General Municipal Law § 205-a. However, by commencing one action joining 66 plaintiffs rather than 66 separate actions, plaintiffs defeated the Legislature’s main reason for converting from a commencement-by-service to a commencement-by-filing system under amended CPLR 304, i.e., to raise money for State coffers by requiring the payment of a filing fee when an action is commenced (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 719). To the extent various circumstances concerning various plaintiffs might be similar enough to warrant joinder, such cannot be determined upon the instant papers, and should be addressed by the motion court after the remaining 65 plaintiffs have had a fair opportunity to commence separate actions. Pursuant to defendant’s agreement at oral argument, the Statute of Limitations is tolled and shall not be a bar to the re-filings allowed herein. Concur — Sullivan, P. J., Nardelli, Wallach, Lerner and Buckley, JJ.