Hall v. Colle

Appellate Division of the Supreme Court of New York

Hall v. Colle

7 A.D.3d 758, 776 N.Y.S.2d 906

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

DecidedMay 24, 2004

StatusPublished

This text of 7 A.D.3d 758 (Hall v. Colle) 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

Hall v. Colle, 7 A.D.3d 758, 776 N.Y.S.2d 906 (N.Y. Ct. App. 2004).

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Opinion

In two related actions to recover damages for breach of a promissory note, the defendant appeals from an order of the Supreme Court, Suffolk County (Klein, J.), entered August 26, 2003, which denied his motion to dismiss Action No. 2 as time-barred, and granted the plaintiffs cross motion pursuant to CPLR 306-b for an extension of time to serve the summons in Action No. 1.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s motion to dismiss Action No. 2, and substituting therefor a provision granting the motion, and dismissing Action No. 2; as so modified, the order is affirmed, without costs or disbursements.

Upon consideration of the relevant factors, the Supreme Court properly concluded that it would be in the interest of justice to grant the plaintiff an extension of time to effect service in Action No. 1 (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). However, since it is undisputed that Action No. 2 was commenced after the expiration of the applicable statute of limitations, the Supreme Court should have granted the defendant’s motion to dismiss that action as time-barred (see Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 88 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, supra). Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.

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In two related actions to recover damages for breach of a promissory note, the defendant appeals from an order of the Supreme Court, Suffolk County (Klein, J.), entered August 26, 2003, which denied his motion to dismiss Action No. 2 as time-barred, and granted the plaintiffs cross motion pursuant to CPLR 306-b for an extension of time to serve the summons in Action No. 1.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s motion to dismiss Action No. 2, and substituting therefor a provision granting the motion, and dismissing Action No. 2; as so modified, the order is affirmed, without costs or disbursements.

Upon consideration of the relevant factors, the Supreme Court properly concluded that it would be in the interest of justice to grant the plaintiff an extension of time to effect service in Action No. 1 (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). However, since it is undisputed that Action No. 2 was commenced after the expiration of the applicable statute of limitations, the Supreme Court should have granted the defendant’s motion to dismiss that action as time-barred (see Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 88 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, supra). Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.

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Bluebook (online)

7 A.D.3d 758, 776 N.Y.S.2d 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-colle-nyappdiv-2004.

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