Young v. Yager

Appellate Division of the Supreme Court of New York

Young v. Yager

265 A.D.2d 864, 695 N.Y.S.2d 800, 1999 N.Y. App. Div. LEXIS 9957

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

DecidedOctober 1, 1999

StatusPublished

This text of 265 A.D.2d 864 (Young v. Yager) 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

Young v. Yager, 265 A.D.2d 864, 695 N.Y.S.2d 800, 1999 N.Y. App. Div. LEXIS 9957 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order unanimously affirmed without costs. Memorandum: Plaintiff was injured in an automobile accident on August 2, 1994. He commenced this action by obtaining an order pursuant to CPLR 304 on August 6, 1997 and filing a summons with notice with the court clerk on that same day. Supreme Court properly dismissed the complaint as time-barred. CPLR 304 provides in relevant part that, “[w]here a court finds that circumstances prevent immediate filing, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence the action.” Contrary to plaintiffs contention, an application pursuant to CPLR 304 to extend the time to file a summons with notice must be made before the Statute of Limitations expires on the action. Here, plaintiff made his application to the court after the three-year Statute of Limitations had expired on his personal injury action (see, CPLR 214 [5]). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.) Present — Lawton, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.

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—Order unanimously affirmed without costs. Memorandum: Plaintiff was injured in an automobile accident on August 2, 1994. He commenced this action by obtaining an order pursuant to CPLR 304 on August 6, 1997 and filing a summons with notice with the court clerk on that same day. Supreme Court properly dismissed the complaint as time-barred. CPLR 304 provides in relevant part that, “[w]here a court finds that circumstances prevent immediate filing, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence the action.” Contrary to plaintiffs contention, an application pursuant to CPLR 304 to extend the time to file a summons with notice must be made before the Statute of Limitations expires on the action. Here, plaintiff made his application to the court after the three-year Statute of Limitations had expired on his personal injury action (see, CPLR 214 [5]). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.) Present — Lawton, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.

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Bluebook (online)

265 A.D.2d 864, 695 N.Y.S.2d 800, 1999 N.Y. App. Div. LEXIS 9957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-yager-nyappdiv-1999.