De Simone v. Frosina

Appellate Division of the Supreme Court of New York

De Simone v. Frosina

221 A.D.2d 410, 633 N.Y.S.2d 1012, 1995 N.Y. App. Div. LEXIS 12050

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 1995·Published·Cited by 3 cases

Opinion

—In an action to recover damages, inter alia, for personal injuries and wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Dye, J.), dated December 19, 1994, which denied his motion to dismiss the complaint as barred by the applicable Statute of Limitations.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion to dismiss the complaint is granted, and the complaint is dismissed.

This action, commenced more than three years after the causes of action accrued, should have been dismissed as time barred. Because statutory authorization existed for obtaining jurisdiction over the defendant by means other than personal delivery of the summons within this State, the tolling provi[411] sion of CPLR 207 was unavailable to salvage the plaintiffs action (see, Yarusso v Arbotowicz, 41 NY2d 516; Rachlin v Ortiz, 133 AD2d 76). Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages, inter alia, for personal injuries and wrongful death, the defendant appeals from an order of the Supreme Court, Queens County (Dye, J.), dated December 19, 1994, which denied his motion to dismiss the complaint as barred by the applicable Statute of Limitations.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion to dismiss the complaint is granted, and the complaint is dismissed.

This action, commenced more than three years after the causes of action accrued, should have been dismissed as time barred. Because statutory authorization existed for obtaining jurisdiction over the defendant by means other than personal delivery of the summons within this State, the tolling provi[411] sion of CPLR 207 was unavailable to salvage the plaintiffs action (see, Yarusso v Arbotowicz, 41 NY2d 516; Rachlin v Ortiz, 133 AD2d 76). Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.

De Simone v. Frosina, 221 A.D.2d 410, 633 N.Y.S.2d 1012, 1995 N.Y. App. Div. LEXIS 12050 (N.Y. Ct. App. 1995).

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