Marion v. City of New York

Appellate Division of the Supreme Court of New York

Marion v. City of New York

270 A.D.2d 53, 704 N.Y.S.2d 59, 2000 N.Y. App. Div. LEXIS 2615

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

DecidedMarch 9, 2000

StatusPublished

Cited by1 cases

This text of 270 A.D.2d 53 (Marion 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

Marion v. City of New York, 270 A.D.2d 53, 704 N.Y.S.2d 59, 2000 N.Y. App. Div. LEXIS 2615 (N.Y. Ct. App. 2000).

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Opinion

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 28, 1998, which, upon reargument, granted defendant New York City Housing Authority’s motion to vacate an order of the same court and Justice, entered August 31, 1998, inter alia, dismissing plaintiffs complaint with leave to refile within 30 days, and granted defendants’ prior cross motion to dismiss the complaint with prejudice, unanimously modified, on the law, to the extent of denying defendant’s cross motion and granting plaintiff leave to recommence her action within the 120-day [54]*54time-frame set forth in CPLR former 306-b (b), and otherwise affirmed, without costs.

The timely filing by plaintiff of proof of service upon defendant Housing Authority satisfied the requirements of CPLR former 306-b (a), regardless of the fact that service was later determined to have been effected at a wrong address (Zaleski v Mlynarkiewicz, 255 AD2d 379; Reyes v Harris Press & Shear, 256 AD2d 564). Thus, the automatic dismissal provision of CPLR former 306-b (a) was inapplicable. Moreover, because CPLR former 306-b contained a saving provision (CPLR former 306-b [b]) affording plaintiff an additional 120 days to recommence her action, and that, additional period had not yet expired as of the date of the appealed order, the motion court erred in holding that a new action against defendant Housing Authority was time-barred. Concur — Sullivan, P. J., Ellerin, Lerner and Buckley, JJ.,

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—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 28, 1998, which, upon reargument, granted defendant New York City Housing Authority’s motion to vacate an order of the same court and Justice, entered August 31, 1998, inter alia, dismissing plaintiffs complaint with leave to refile within 30 days, and granted defendants’ prior cross motion to dismiss the complaint with prejudice, unanimously modified, on the law, to the extent of denying defendant’s cross motion and granting plaintiff leave to recommence her action within the 120-day [54]*54time-frame set forth in CPLR former 306-b (b), and otherwise affirmed, without costs.

The timely filing by plaintiff of proof of service upon defendant Housing Authority satisfied the requirements of CPLR former 306-b (a), regardless of the fact that service was later determined to have been effected at a wrong address (Zaleski v Mlynarkiewicz, 255 AD2d 379; Reyes v Harris Press & Shear, 256 AD2d 564). Thus, the automatic dismissal provision of CPLR former 306-b (a) was inapplicable. Moreover, because CPLR former 306-b contained a saving provision (CPLR former 306-b [b]) affording plaintiff an additional 120 days to recommence her action, and that, additional period had not yet expired as of the date of the appealed order, the motion court erred in holding that a new action against defendant Housing Authority was time-barred. Concur — Sullivan, P. J., Ellerin, Lerner and Buckley, JJ.,

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Bluebook (online)

270 A.D.2d 53, 704 N.Y.S.2d 59, 2000 N.Y. App. Div. LEXIS 2615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marion-v-city-of-new-york-nyappdiv-2000.

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