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

Appellate Division of the Supreme Court of New York

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

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

DecidedDecember 19, 1995

StatusPublished

This text of 222 A.D.2d 304 (Charm-Tex, Inc. v. Sears, Roebuck & Co.) 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

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 (N.Y. Ct. App. 1995).

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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.

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—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.

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Bluebook (online)

222 A.D.2d 304, 635 N.Y.S.2d 595, 1995 N.Y. App. Div. LEXIS 13023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charm-tex-inc-v-sears-roebuck-co-nyappdiv-1995.

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