Mark-Holli Realty, Inc. v. New York City Loft Board

Appellate Division of the Supreme Court of New York

Mark-Holli Realty, Inc. v. New York City Loft Board

205 A.D.2d 315, 613 N.Y.S.2d 586

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

DecidedJune 2, 1994

StatusPublished

Cited by2 cases

This text of 205 A.D.2d 315 (Mark-Holli Realty, Inc. v. New York City Loft Board) 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.

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Mark-Holli Realty, Inc. v. New York City Loft Board, 205 A.D.2d 315, 613 N.Y.S.2d 586 (N.Y. Ct. App. 1994).

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Opinion

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 27, 1993, which granted respondent’s motion to dismiss the petition as being time barred pursuant to CPLR 217, unanimously affirmed, without costs.

The IAS Court properly dismissed the petition, which was served on May 21, 1992, more than three months after expiration of the four-month period of limitations (CPLR 217). Petitioner’s original pleading, which was served on the Corporation Counsel as attorney for respondent, was dismissed by prior order by the IAS Court for lack of proper service, with leave to renew upon proof of proper service. Petitioner’s claim that this prior order allowed it to serve respondent beyond the four-month period of limitations is without merit because the statutory period of limitations may not be extended by the court (CPLR 201). Further, no provision of CPLR article 2 applies to toll the instant matter beyond the four-month period herein.

Nor do we find meritorious petitioner’s claim that the prior service of the original petition on the Corporation Counsel was proper. The alternative method employed was not in accordance with the CPLR, was not authorized by the court, or consented to by respondent.

Petitioner’s remaining argument that CPLR 3211 (e) precludes respondent from making an additional motion under CPLR 3211 (a) is likewise without merit, since petitioner sought to commence a new action by service of its second petition, and hence, the respondent is not precluded from moving again. Concur—Sullivan, J. P., Rosenberger, Ellerin, Asch and Nardelli, JJ.

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Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered January 27, 1993, which granted respondent’s motion to dismiss the petition as being time barred pursuant to CPLR 217, unanimously affirmed, without costs.

The IAS Court properly dismissed the petition, which was served on May 21, 1992, more than three months after expiration of the four-month period of limitations (CPLR 217). Petitioner’s original pleading, which was served on the Corporation Counsel as attorney for respondent, was dismissed by prior order by the IAS Court for lack of proper service, with leave to renew upon proof of proper service. Petitioner’s claim that this prior order allowed it to serve respondent beyond the four-month period of limitations is without merit because the statutory period of limitations may not be extended by the court (CPLR 201). Further, no provision of CPLR article 2 applies to toll the instant matter beyond the four-month period herein.

Nor do we find meritorious petitioner’s claim that the prior service of the original petition on the Corporation Counsel was proper. The alternative method employed was not in accordance with the CPLR, was not authorized by the court, or consented to by respondent.

Petitioner’s remaining argument that CPLR 3211 (e) precludes respondent from making an additional motion under CPLR 3211 (a) is likewise without merit, since petitioner sought to commence a new action by service of its second petition, and hence, the respondent is not precluded from moving again. Concur—Sullivan, J. P., Rosenberger, Ellerin, Asch and Nardelli, JJ.

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205 A.D.2d 315, 613 N.Y.S.2d 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-holli-realty-inc-v-new-york-city-loft-board-nyappdiv-1994.

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