Rivera v. Berkeley Super Wash, Inc.

45 A.D.2d 734, 357 N.Y.S.2d 1010, 1974 N.Y. App. Div. LEXIS 4706

Opinion

by respondents (1) for reargument of part of appeal from order of the Supreme Court, Kings County, dated November 7, 1973, which appeal was determined by order of this court dated April 15, 1974, i.e., the part which resulted in the provision of said order of this co'qrt which effectuated a denial of plaintiffs’ motion for leave to add the sixth cause of action to the amended complaint; and (2) in the event such relief not be granted, for leave to appeal to the Court of Appeals from said provision in said order of this court. Motion insofar as it is for reargument denied, without prejudice to any motion which respondents may be advised to make at Special Term to add said sixth cause of action to the amended complaint, invoking CPLR 203 (subd. [e]), upon which motion, if and when made, Special Term should conduct a hearing to determine if and when service of plaintiffs’ summons and original complaint was made upon defendant Bock Laundry Machine Company. If it should be determined, following such hearing, that service on Bock was not effectuated prior to the expiration of the applicable three-year Statute of Limitations, then CPLR 203 (subd. [e]) would have no application to the matter in question and a denial of such motion by plaintiffs would be proper. Motion insofar as it is for leave to appeal to the Court of Appeals denied. Shapiro, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.