Dempsey v. St. Clare's Hospital & Health Center

Appellate Division of the Supreme Court of New York

Dempsey v. St. Clare's Hospital & Health Center

251 A.D.2d 179, 675 N.Y.S.2d 863, 1998 N.Y. App. Div. LEXIS 7388

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

DecidedJune 23, 1998

StatusPublished

This text of 251 A.D.2d 179 (Dempsey v. St. Clare's Hospital & Health Center) 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

Dempsey v. St. Clare's Hospital & Health Center, 251 A.D.2d 179, 675 N.Y.S.2d 863, 1998 N.Y. App. Div. LEXIS 7388 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about May 4, 1997, which, insofar as appealed from, denied [180]*180defendant-appellant’s motion to dismiss the action as against him as time-barred, unanimously affirmed, without costs.

The plain language of CPLR former 306-b (b) does not support defendant’s claim that fraudulent proof of service in the first action (a finding made by the Special Referee but not adopted as the reason for dismissing the first action) precluded plaintiffs from bringing this second action after the Statute of Limitations had expired. The allegedly fraudulent affidavit of service conferred no benefit on plaintiffs in terms of extending the Statute of Limitations, since they could have recommenced the action under the former statute even if they had not filed any proof of service at all. Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.

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—Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about May 4, 1997, which, insofar as appealed from, denied [180]*180defendant-appellant’s motion to dismiss the action as against him as time-barred, unanimously affirmed, without costs.

The plain language of CPLR former 306-b (b) does not support defendant’s claim that fraudulent proof of service in the first action (a finding made by the Special Referee but not adopted as the reason for dismissing the first action) precluded plaintiffs from bringing this second action after the Statute of Limitations had expired. The allegedly fraudulent affidavit of service conferred no benefit on plaintiffs in terms of extending the Statute of Limitations, since they could have recommenced the action under the former statute even if they had not filed any proof of service at all. Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.

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Bluebook (online)

251 A.D.2d 179, 675 N.Y.S.2d 863, 1998 N.Y. App. Div. LEXIS 7388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-st-clares-hospital-health-center-nyappdiv-1998.