78 A.D.2d 848 | N.Y. App. Div. | 1980
Lead Opinion
In a negligence action to recover damages for personal injuries, etc., plaintiff appeals from an order of the Supreme Court, Queens County, dated September 25,1979, which granted defendant’s motion to dismiss the complaint as barred by the Statute of Limitations. Order affirmed, without costs or disbursements. On November 14, 1977, just four days prior to the expiration of the Statute of Limitations, plaintiff filed a copy of the summons and complaint with the Queens County Sheriff in an attempt to toll the Statute of Limitations pursuant to CPLR 203 (subd [b], par 5). Compliance with that section, pursuant to its amendment effective September 1, 1976, and thus applicable at the time of attempted service herein, required that delivery and filing should properly have been with the Clerk of Queens County, inasmuch as it appears from the summons that the action was designated to be tried in Queens County, located within the City of New York, which is also the county stated to be the location of defendant’s residence. To the extent that this decision may be inconsistent with Bromley v Cosmatos (75 AD2d 798), the latter is overruled. Titone, J. P., Gibbons and Gulotta, JJ., concur.
Dissenting Opinion
dissents and votes to reverse the order, deny the motion, and reinstate the complaint, with the following memorandum: I would hold that filing the summons and complaint with the Sheriff of Queens County successfully tolled the Statute of Limitations (cf. Bromley v Cosmatos, 75 AD2d 798). Plaintiff substantially complied with the statutory requirements and defendant received the required notification of the action within the 60-day period provided by CPLR 203 (subd [b], par 5).