Zhinin v. Vicari

50 A.D.3d 786, 855 N.Y.S.2d 608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2008
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered August 1, 2007, which denied their motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

In support of their motion to dismiss the plaintiffs complaint pursuant to CPLR 3211 (a) (5), the defendants demonstrated that the Westchester County Clerk stamped the summons and complaint as filed on February 21, 2007, one day past the applicable statute of limitations. In opposition to the defendants’ motion, however, the plaintiff submitted the affidavit of Robert Crandall, a licensed process server who delivered the summons and complaint to the Westchester County Clerk’s office. This affidavit raised a factual issue requiring a hearing, to wit, on the issue of whether the papers and filing fee were timely delivered to the County Clerk so as to have met the requirements of CPLR 304 (see Peace v Yumin Zhang, 15 AD3d 956 [2005]). Under the circumstances, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on the issue of when the papers and the filing fee were delivered to the County Clerk and for a new determination of the motion to dismiss thereafter. Skelos, J.P., Angiolillo, Leventhal and Belen, JJ., concur.