§ 216 — Abbreviation of period to one year after notice

New York § 216

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 2: Limitations of Time

Text

§ 216. Abbreviation of period to one year after notice. (a) Action to\nrecover money. 1. No action for the recovery of any sum of money due and\npayable under or on account of a contract, or for any part thereof,\nshall be commenced by any person who has made claim to the sum, after\nthe expiration of one year from the giving of notice, as hereinafter\nprovided, to the claimant that an action commenced by another person is\npending to recover the sum, or any part thereof, exceeding fifty dollars\nin amount. This limitation shall not be construed to enlarge the time\nwithin which the cause of action of the claimant would otherwise be\nbarred.\n 2. If any person shall make claim for the recovery of any sum of money\ndue and payable under or on account of a contract, and an action has\ntheretofore been, or shall thereafter be, commenced by another person to\nrecover the sum, or any part thereof, exceeding fifty dollars in amount,\nthe defendant in such action may, within twenty days from the date of\nservice upon him of the complaint or from the date of receipt by him of\nthe claim, whichever occurs later, make a motion before the court in\nwhich the action is pending for an order permitting the defendant to\ngive notice to the claimant that the action is pending. The court in\nwhich the action is pending shall grant the order where it appears that\na person not a party to the action has made claim against the defendant\nfor the sum of money, or any part thereof, exceeding fifty dollars in\namount; that the action was brought without collusion between the\ndefendant and the plaintiff; and that the claimant cannot, with due\ndiligence, be served with process in such a manner as to obtain\njurisdiction over his person. The order shall provide, among such other\nterms and conditions as justice may require, that notice shall be given\nto the claimant by sending by registered mail a copy of the summons and\ncomplaint in the action and the order and a notice addressed to the\nclaimant at his last known address. In the event that registration of\nmail directed to any country or part thereof shall be discontinued or\nsuspended, notice to a claimant whose last known address is within such\ncountry or part thereof shall be given by ordinary mail, under such\nterms and conditions as the court may direct. Proof that the notice has\nbeen mailed shall be filed within ten days from the date of the order;\notherwise the order becomes inoperative. Upon such filing, notice shall\nbe deemed to have been given on the tenth day after the date of such\norder.\n 3. Upon proof by affidavit or otherwise, to the satisfaction of the\ncourt, that the conditions of this subdivision have been satisfied and\nthat there is no collusion between the claimant and the defendant, the\ncourt shall make an order staying further prosecution of the action for\na period not to exceed one year from the date when the notice shall have\nbeen given to the claimant. At the time of the granting of such order or\nat any time thereafter, the court, upon the motion of any party, shall,\nas a condition of the granting of the order or its continuation, impose\nupon the defendant such terms as justice may require as to the\nfurnishing of an undertaking in an amount to be fixed by the court. The\nstay shall be vacated and the undertaking, if any has been given, may be\ndischarged or modified, as justice may require, upon proof to the court\nby any party to the action that the claimant has intervened or has\ninstituted another action in any court of this state to recover the said\nsum of money, or any part thereof, exceeding fifty dollars.\n 4. A motion for any relief as prescribed in this subdivision shall be\nmade on notice to all other parties to the action.\n 5. Whenever claims are made by two or more persons, each claiming to\nbe, to the exclusion of the other, the duly authorized deputy, officer\nor agent to demand, receive, collect, sue for or recover the same sum of\nmoney due and payable under or on account of a contract, or any part\nthereof, exceeding fifty dollars in amount, for and on behalf of the\nsame person, each person making such a claim shall be deemed an adverse\nclaimant. Notwithstanding that an action has been commenced in the name\nof or on behalf of the person for whom he claims to be the duly\nauthorized deputy, officer or agent, any such adverse claimant may be\nnotified of the pendency of an action as provided in this subdivision\nand may intervene in the action and be designated as claiming to be or\nas the alleged deputy, officer or agent.\n 6. Whenever an action has been commenced for the recovery of any sum\nof money exceeding fifty dollars due and payable under or on account of\na contract and the records of the defendant show that a person other\nthan the plaintiff has the right, exclusive of other deputies, officers\nor agents of the plaintiff, to demand, sue for and recover the same sum\nof money, or any part thereof, exceeding fifty dollars in amount, either\nin his own name, on his own behalf, or as the authorized deputy, officer\nor agent for the plaintiff, and the defendant has received no notice of\ntransfer, revocation, or other change in right or authority acceptable\nto it, the person so appearing on the records shall be deemed to have\nmade an adverse claim to the sum of money and may be treated as an\nadverse claimant.\n (b) Action to recover property. When an action has been commenced to\nrecover specific personal property, including certificates of stocks,\nbonds, notes or other securities or obligations, exceeding fifty dollars\nin value, held by the defendant within the state, or to enforce a vested\nor contingent interest or lien upon such property, and a person not a\nparty to the action asserts a claim to the whole or any part of the same\nproperty or to a right, interest or lien upon it which is adverse to the\nplaintiff's claim, and the court in which the action is pending has no\njurisdiction over the adverse claimant to direct the issuance of process\nor if the same be issued it would be without effect notwithstanding that\nthe action seeks to have declared, enforced, regulated, defined or\nlimited, rights, interests or liens upon specific personal property\nwithin the state, the defendant in the action may within twenty days\nfrom the date of service upon him of the complaint or within twenty days\nof the date of the receipt by him of the adverse claim, whichever shall\noccur later, make a motion before the court for leave to give notice to\nthe adverse claimant of the pending action in the same manner as\nprovided in subdivision (a). Upon the granting of such an order, the\nprovisions of subdivision (a) shall apply insofar as they are compatible\nwith the subject matter of the action.\n