Gomez v. City of New York

Appellate Division of the Supreme Court of New York

Gomez v. City of New York

49 A.D.3d 473, 855 N.Y.2d 60

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

DecidedMarch 27, 2008

StatusPublished

This text of 49 A.D.3d 473 (Gomez v. City of New York) 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

Gomez v. City of New York, 49 A.D.3d 473, 855 N.Y.2d 60 (N.Y. Ct. App. 2008).

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Opinion

Although the filing of plaintiffs motion for leave to amend the complaint to name Empire as a defendant, along with the proposed amended pleadings, was sufficient to toll the statute of limitations, it was not itself the interposition of the claim within the meaning of CPLR 203 (a) (see Perez v Paramount Communications, 92 NY2d 749, 754-756 [1999]). Because plaintiff never served Empire after having received leave of the court to do so, the court never obtained personal jurisdiction over Empire, and thus, it was without power to grant relief nunc pro tunc (see Louden v Rockefeller Ctr. N., 249 AD2d 25 [1998]), even in the absence of surprise or prejudice to Empire (see Luis v New York City Hous. Auth., 309 AD2d 719 [2003]).

[474]*474We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.

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Although the filing of plaintiffs motion for leave to amend the complaint to name Empire as a defendant, along with the proposed amended pleadings, was sufficient to toll the statute of limitations, it was not itself the interposition of the claim within the meaning of CPLR 203 (a) (see Perez v Paramount Communications, 92 NY2d 749, 754-756 [1999]). Because plaintiff never served Empire after having received leave of the court to do so, the court never obtained personal jurisdiction over Empire, and thus, it was without power to grant relief nunc pro tunc (see Louden v Rockefeller Ctr. N., 249 AD2d 25 [1998]), even in the absence of surprise or prejudice to Empire (see Luis v New York City Hous. Auth., 309 AD2d 719 [2003]).

[474]*474We have considered plaintiffs remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.

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Bluebook (online)

49 A.D.3d 473, 855 N.Y.2d 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-city-of-new-york-nyappdiv-2008.

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