Charm-Tex, Inc. v. Sears, Roebuck & Co.

222 A.D.2d 304, 635 N.Y.S.2d 595, 1995 N.Y. App. Div. LEXIS 13023

Opinion

—Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered September 23, 1994, dismissing the complaint and bringing up for review an order of the same court and Justice entered August 11, 1994, which granted defendant’s motion for summary judgment, unanimously affirmed, with costs.

The Statute of Limitations was correctly reckoned as of the date service was properly made, it being of no consequence that defendant received actual notice of the action with the first, improperly served summons and complaint (De Zego v Donald F. Bruhn, M.D., P. C, 99 AD2d 823, affd 67 NY2d 875). Since there is no question that the first summons and complaint was not properly served and that second summons and complaint was not served within the limitations period, defendant’s withdrawal of its defense of improper service as against the second summons and complaint did not preclude dismissal of the action as barred by the Statute of Limitations (compare, Weinstein v General Motors Corp., 51 AD2d 335, with Byrne v Fordham Univ., 118 AD2d 525). Concur — Murphy, P. J., Rosenberger, Ross, Nardelli and Mazzarelli, JJ.