Chiaino v. Mitchell

Appellate Division of the Supreme Court of New York

Chiaino v. Mitchell

181 A.D.2d 509

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

DecidedMarch 12, 1992

StatusPublished

This text of 181 A.D.2d 509 (Chiaino v. Mitchell) 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.

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Chiaino v. Mitchell, 181 A.D.2d 509 (N.Y. Ct. App. 1992).

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Opinion

— Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered on or about December 4, 1990, which, inter alia, denied defendant Dr. Mitchell’s motion for summary judgment, on the ground that plaintiffs’ claim against her was barred by the statute of limitations, and granted plaintiffs’ motion to add defendant Michael Truppin, P. C., as a party, unanimously affirmed, with costs.

We find plaintiffs’ service upon Dr. Mitchell, pursuant to CPLR 203 (b) (5), upon the County Clerk in the county in which she last resided or was last employed proper and sufficient to toll the statute of limitations for an additional 60 days, within which time personal service upon Dr. Mitchell was complete. It is of no consequence that plaintiffs may have known Dr. Mitchell’s address outside of the State prior to delivery of the summons to the County Clerk. (Rossi v Oristian, 50 AD2d 44, 48-49.) Accordingly, the action was timely brought against Dr. Mitchell.

We further find that IAS committed no error in adding Michael Truppin, P. C., as a party defendant since all of the prerequisites for leave to file the proposed amended complaint were met. (Mondello v New York Blood Center-Greater N. Y. Blood Program, 175 AD2d 718, 719.) Concur — Carro, J. P., Milonas, Wallach, Ross and Rubin, JJ. [See, 149 Misc 2d 88.]

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— Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered on or about December 4, 1990, which, inter alia, denied defendant Dr. Mitchell’s motion for summary judgment, on the ground that plaintiffs’ claim against her was barred by the statute of limitations, and granted plaintiffs’ motion to add defendant Michael Truppin, P. C., as a party, unanimously affirmed, with costs.

We find plaintiffs’ service upon Dr. Mitchell, pursuant to CPLR 203 (b) (5), upon the County Clerk in the county in which she last resided or was last employed proper and sufficient to toll the statute of limitations for an additional 60 days, within which time personal service upon Dr. Mitchell was complete. It is of no consequence that plaintiffs may have known Dr. Mitchell’s address outside of the State prior to delivery of the summons to the County Clerk. (Rossi v Oristian, 50 AD2d 44, 48-49.) Accordingly, the action was timely brought against Dr. Mitchell.

We further find that IAS committed no error in adding Michael Truppin, P. C., as a party defendant since all of the prerequisites for leave to file the proposed amended complaint were met. (Mondello v New York Blood Center-Greater N. Y. Blood Program, 175 AD2d 718, 719.) Concur — Carro, J. P., Milonas, Wallach, Ross and Rubin, JJ. [See, 149 Misc 2d 88.]

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181 A.D.2d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chiaino-v-mitchell-nyappdiv-1992.

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