Keglic v. Flater

Appellate Division of the Supreme Court of New York

Keglic v. Flater

266 A.D.2d 353, 698 N.Y.S.2d 157, 1999 N.Y. App. Div. LEXIS 11551

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

DecidedNovember 15, 1999

StatusPublished

Cited by3 cases

This text of 266 A.D.2d 353 (Keglic v. Flater) 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

Keglic v. Flater, 266 A.D.2d 353, 698 N.Y.S.2d 157, 1999 N.Y. App. Div. LEXIS 11551 (N.Y. Ct. App. 1999).

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Opinion

—In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated November 30, 1998, which denied her motion to dismiss the action on the ground that the Statute of Limitations had expired.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The plaintiff sought to recover damages for personal injuries and injury to property allegedly incurred in a 1994 accident. [354]*354The complaint was filed on June 12, 1997, and was automatically dismissed on October 10, 1997, due to the plaintiffs failure to file proof of service (see, CPLR former 306-b [a]; Williamson v Edwards, 261 AD2d 612). Although the plaintiff served the defendant with a summons and complaint in January 1998, since the plaintiff failed to purchase a new index number and refile the summons and complaint within 120 days of October 10, 1997, the second action was not properly commenced and was a nullity (see, Matter of Gershel v Porr, 89 NY2d 327, 330-332; Gold v Noori, 261 AD2d 208; Kelly v Delaney, 248 AD2d 360; Dolson v DiPietro, 251 AD2d 535; Midamerica Fed. Sav. Bank v Gaon, 242 AD2d 610). In any event, we note that the three-year Statute of Limitations has expired. Santucci, J. P., Altman, Friedmann and H. Miller, JJ., concur.

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—In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated November 30, 1998, which denied her motion to dismiss the action on the ground that the Statute of Limitations had expired.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The plaintiff sought to recover damages for personal injuries and injury to property allegedly incurred in a 1994 accident. [354]*354The complaint was filed on June 12, 1997, and was automatically dismissed on October 10, 1997, due to the plaintiffs failure to file proof of service (see, CPLR former 306-b [a]; Williamson v Edwards, 261 AD2d 612). Although the plaintiff served the defendant with a summons and complaint in January 1998, since the plaintiff failed to purchase a new index number and refile the summons and complaint within 120 days of October 10, 1997, the second action was not properly commenced and was a nullity (see, Matter of Gershel v Porr, 89 NY2d 327, 330-332; Gold v Noori, 261 AD2d 208; Kelly v Delaney, 248 AD2d 360; Dolson v DiPietro, 251 AD2d 535; Midamerica Fed. Sav. Bank v Gaon, 242 AD2d 610). In any event, we note that the three-year Statute of Limitations has expired. Santucci, J. P., Altman, Friedmann and H. Miller, JJ., concur.

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Bluebook (online)

266 A.D.2d 353, 698 N.Y.S.2d 157, 1999 N.Y. App. Div. LEXIS 11551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keglic-v-flater-nyappdiv-1999.

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