Parker v. Mack

92 A.D.2d 699, 460 N.Y.S.2d 399, 1983 N.Y. App. Div. LEXIS 16979

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1983
• Status: Published

Opinion

Appeal from so much of an order of the Supreme Court at Special Term (Sullivan, Jr., J.), entered April 13, 1982 in Cortland County, as granted plaintiffs’ cross motion allowing them to commence a new action within six months. Plaintiff Arvin B. Parker was involved in an auto accident on October 18, 1978. On October 17, 1981, a bare summons was served on defendant. Defendant moved to dismiss the action for failure to serve a notice with the complaint pursuant to CPLR 305 (subd [b]). Plaintiffs, while not opposing defendant’s motion, cross-moved for leave to commence a new action within six months pursuant to CPLR 205 (subd [a]). Both motions were granted and defendant has appealed from that portion of Special Term’s order which allowed plaintiffs to take advantage of the extension provisions of CPLR 205 (subd [a]). In Ciaschi v Town of Enfield (86 AD2d 903), this court held that a plaintiff who attempted to commence an action by service of a bare summons did not obtain jurisdiction over the defendant so as to enable use of the six-month extension for commencement of an action contained in CPLR 205 (subd [a]). Accordingly, Special Term erred when it granted plaintiffs’ cross motion since CPLR 205 (subd [a]) can only be applied to save an action which has been “timely commenced”. Order modified, on the law, by reversing so much thereof as granted plaintiffs’ cross motion, and cross motion denied, and, as so modified, affirmed, with costs. Mahoney, P. J., Kane, Casey, Yesawich, Jr., and Levine, JJ., concur.