Rahi v. Fang

Appellate Division of the Supreme Court of New York

Rahi v. Fang

245 A.D.2d 13, 665 N.Y.S.2d 641, 1997 N.Y. App. Div. LEXIS 11984

Appellate Division of the Supreme Court of the State of New York·Decided December 2, 1997·Published·Cited by 2 cases

Opinion

—Order, Supreme Court, New York County (Paula Omansky, J.), [14] entered January 24, 1996, which, in an action for personal injuries against defendants driver and owner of a vehicle that collided with plaintiffs vehicle, denied defendants’ motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The IAS Court correctly held that for purposes of the Statute of Limitations, defendant owner is united in interest with defendant driver (CPLR 203 [b], [c]; Jordan v Westhill Cent. School Dist., 42 AD2d 1043; cf., Grossman v New York City Health & Hosps. Corp., 178 AD2d 323). Since the action was commenced prior to the effective date of current CPLR 304 and 306-b, timely service of the summons and complaint on the driver constituted timely service on the owner (CPLR 203 [b] [1]), and plaintiffs failure to file proof of service until more than three years after the accident was a nonjurisdictional defect that, absent prejudice, could be cured by the granting of leave to file nunc pro tunc (see, Reporter Co. v Tomicki, 60 AD2d 947, lv dismissed 44 NY2d 791).

We have considered defendants’ remaining arguments and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

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—Order, Supreme Court, New York County (Paula Omansky, J.), [14] entered January 24, 1996, which, in an action for personal injuries against defendants driver and owner of a vehicle that collided with plaintiffs vehicle, denied defendants’ motion to dismiss the complaint as time-barred, unanimously affirmed, with costs.

The IAS Court correctly held that for purposes of the Statute of Limitations, defendant owner is united in interest with defendant driver (CPLR 203 [b], [c]; Jordan v Westhill Cent. School Dist., 42 AD2d 1043; cf., Grossman v New York City Health & Hosps. Corp., 178 AD2d 323). Since the action was commenced prior to the effective date of current CPLR 304 and 306-b, timely service of the summons and complaint on the driver constituted timely service on the owner (CPLR 203 [b] [1]), and plaintiffs failure to file proof of service until more than three years after the accident was a nonjurisdictional defect that, absent prejudice, could be cured by the granting of leave to file nunc pro tunc (see, Reporter Co. v Tomicki, 60 AD2d 947, lv dismissed 44 NY2d 791).

We have considered defendants’ remaining arguments and find them to be without merit. Concur—Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

Rahi v. Fang, 245 A.D.2d 13, 665 N.Y.S.2d 641, 1997 N.Y. App. Div. LEXIS 11984 (N.Y. Ct. App. 1997).

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Opinion

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