Greenblatt v. New York Surety Co.

Appellate Division of the Supreme Court of New York

Greenblatt v. New York Surety Co.

246 A.D.2d 385, 668 N.Y.S.2d 159, 1998 N.Y. App. Div. LEXIS 258

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

DecidedJanuary 15, 1998

StatusPublished

Cited by1 cases

This text of 246 A.D.2d 385 (Greenblatt v. New York Surety 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

Greenblatt v. New York Surety Co., 246 A.D.2d 385, 668 N.Y.S.2d 159, 1998 N.Y. App. Div. LEXIS 258 (N.Y. Ct. App. 1998).

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Opinion

Order, Supreme Court New York County (Lewis R. Friedman, J.), entered December 9, 1996, which granted defendant’s [386]*386motion to dismiss plaintiffs’ complaint as time-barred, unanimously affirmed, without costs.

Plaintiffs’ Federal action to recover on a surety bond issued by defendant met with initial success in the District Court (Greenblatt v Delta Plumbing & Heating Corp., 849 F Supp 247), but on appeal the Second Circuit found a lack of subject matter jurisdiction, reversed the judgment in plaintiffs’ favor and dismissed the action (68 F3d 561). The narrow issue now is when the Federal action “terminated” for purposes of the six-month time limit in CPLR 205 (a) for commencing a new action in State court. The IAS Court held that plaintiffs’ Federal action was terminated either by the Second Circuit’s decision, which was entered on October 13, 1995, or, at the latest, by the mandate of the Clerk of that Court, which was issued on November 3, 1995, and not, as plaintiffs argue, by the District Court’s order of January 18, 1996, which merely dismissed the complaint pursuant to the nondiscretionary mandate, and that the instant action, which was commenced on May 30, 1996, is therefore time-barred. We agree. The Federal action should be considered as having terminated at “that point of time in the litigation when * * * plaintifffs] ha[d] exhausted [their] rights with respect thereto” (Brumel v Hartford Fire Ins. Co., 158 Misc 311, 316), which is to say “from the date of determination of an appeal on the merits” (Dinerman v Sutton, 45 Misc 2d 791, 792; see also, 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 486). This result has additional support in Federal authority holding that “ [usually the issuance of a mandate by [a Federal Court of Appeals] means that the litigation has come to an end” (Gradsky v United States, 376 F2d 993, 995, cert denied sub nom. Grene v United States, 389 US 908). Nothing in the record indicates that any exceptional circumstances exist that might justify a recall of the Second Circuit’s mandate. Nor did plaintiffs take any further action in Federal court after the issuance of the Second Circuit’s opinion. Concur—Ellerin, J. P., Wallach, Mazzarelli, Andidas and Colabella, JJ. [See, 171 Misc 2d 126.]

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Order, Supreme Court New York County (Lewis R. Friedman, J.), entered December 9, 1996, which granted defendant’s [386]*386motion to dismiss plaintiffs’ complaint as time-barred, unanimously affirmed, without costs.

Plaintiffs’ Federal action to recover on a surety bond issued by defendant met with initial success in the District Court (Greenblatt v Delta Plumbing & Heating Corp., 849 F Supp 247), but on appeal the Second Circuit found a lack of subject matter jurisdiction, reversed the judgment in plaintiffs’ favor and dismissed the action (68 F3d 561). The narrow issue now is when the Federal action “terminated” for purposes of the six-month time limit in CPLR 205 (a) for commencing a new action in State court. The IAS Court held that plaintiffs’ Federal action was terminated either by the Second Circuit’s decision, which was entered on October 13, 1995, or, at the latest, by the mandate of the Clerk of that Court, which was issued on November 3, 1995, and not, as plaintiffs argue, by the District Court’s order of January 18, 1996, which merely dismissed the complaint pursuant to the nondiscretionary mandate, and that the instant action, which was commenced on May 30, 1996, is therefore time-barred. We agree. The Federal action should be considered as having terminated at “that point of time in the litigation when * * * plaintifffs] ha[d] exhausted [their] rights with respect thereto” (Brumel v Hartford Fire Ins. Co., 158 Misc 311, 316), which is to say “from the date of determination of an appeal on the merits” (Dinerman v Sutton, 45 Misc 2d 791, 792; see also, 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 486). This result has additional support in Federal authority holding that “ [usually the issuance of a mandate by [a Federal Court of Appeals] means that the litigation has come to an end” (Gradsky v United States, 376 F2d 993, 995, cert denied sub nom. Grene v United States, 389 US 908). Nothing in the record indicates that any exceptional circumstances exist that might justify a recall of the Second Circuit’s mandate. Nor did plaintiffs take any further action in Federal court after the issuance of the Second Circuit’s opinion. Concur—Ellerin, J. P., Wallach, Mazzarelli, Andidas and Colabella, JJ. [See, 171 Misc 2d 126.]

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246 A.D.2d 385, 668 N.Y.S.2d 159, 1998 N.Y. App. Div. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenblatt-v-new-york-surety-co-nyappdiv-1998.

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