Schwartz v. Public Administrator

Appellate Division of the Supreme Court of New York

Schwartz v. Public Administrator

27 A.D.2d 913, 278 N.Y.S.2d 968, 1967 N.Y. App. Div. LEXIS 4407

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

DecidedApril 18, 1967

StatusPublished

This text of 27 A.D.2d 913 (Schwartz v. Public Administrator) 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

Schwartz v. Public Administrator, 27 A.D.2d 913, 278 N.Y.S.2d 968, 1967 N.Y. App. Div. LEXIS 4407 (N.Y. Ct. App. 1967).

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Opinion

Judgment appealed from unanimously reversed, on the law, the complaint reinstated, plaintiffs-appellants’ motion to dismiss the affirmative defense of the Statute of Limitations is granted and the defense stricken, with $50 costs and disbursements to appellants. The accident upon which this suit is predicated occurred August 27, 1961. The defendant died December 6, 1962 and the present action to recover damages for personal injuries was commenced May 21, 1965. Special Term held the action was not timely commenced by reason of the provisions of CPLR 210 (subd. [b]). This was error. CPLR 210 (subd. [b]) states “ Death of person liable. The period of eighteen months after the death, within or without the state, of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his executor or administrator.” As the language indicates the 18-month period is carved out and tolls the running of the statute. The action was timely commenced (see McDonough v. Cestare, 3 A D 2d 201, mot. for lv. to app. den. 3 A D 2d 861; New York & Boston Despatch Express Co. v. Carroll, 170 App. Div. 197; Gibson v. Meehan, 13 Misc 2d 716, affd. 7 A D 2d 968, affd. 7 N Y 2d 93; Hall v. Brennan, 140 N. Y. 409). The cases relied upon by respondent may be readily distinguished and are not here applicable. While some reference was made upon the argument to the second affirmative defense of res judicata we do not consider or pass upon such defense because it is not properly a part of this appeal and was not briefed or touched upon by respondent. Concur — Stevens, J. P., Eager, Tilzer, McNally and Witmer, JJ. [50 Misc 2d 200.]

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Judgment appealed from unanimously reversed, on the law, the complaint reinstated, plaintiffs-appellants’ motion to dismiss the affirmative defense of the Statute of Limitations is granted and the defense stricken, with $50 costs and disbursements to appellants. The accident upon which this suit is predicated occurred August 27, 1961. The defendant died December 6, 1962 and the present action to recover damages for personal injuries was commenced May 21, 1965. Special Term held the action was not timely commenced by reason of the provisions of CPLR 210 (subd. [b]). This was error. CPLR 210 (subd. [b]) states “ Death of person liable. The period of eighteen months after the death, within or without the state, of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his executor or administrator.” As the language indicates the 18-month period is carved out and tolls the running of the statute. The action was timely commenced (see McDonough v. Cestare, 3 A D 2d 201, mot. for lv. to app. den. 3 A D 2d 861; New York & Boston Despatch Express Co. v. Carroll, 170 App. Div. 197; Gibson v. Meehan, 13 Misc 2d 716, affd. 7 A D 2d 968, affd. 7 N Y 2d 93; Hall v. Brennan, 140 N. Y. 409). The cases relied upon by respondent may be readily distinguished and are not here applicable. While some reference was made upon the argument to the second affirmative defense of res judicata we do not consider or pass upon such defense because it is not properly a part of this appeal and was not briefed or touched upon by respondent. Concur — Stevens, J. P., Eager, Tilzer, McNally and Witmer, JJ. [50 Misc 2d 200.]

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Bluebook (online)

27 A.D.2d 913, 278 N.Y.S.2d 968, 1967 N.Y. App. Div. LEXIS 4407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-public-administrator-nyappdiv-1967.

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