18 Misc. 2d 713 | N.Y. Sup. Ct. | 1959
Tbe defendants, other than the defendant insurance company, seek to dismiss the complaint herein as against them, pursuant to subdivision 4 of rule 107
It appears that in January of 1959 the plaintiffs instituted an action against the movants for personal injuries and property damages alleged to have been sustained by them as a result of an accident (involving two motor vehicles) which occurred in September of 1955. Thereafter, the defendants in that action (who are the present movants) moved to dismiss the complaint therein upon the ground that the Statute of Limitations was a bar to the causes of action alleged therein. That motion, made pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice, came on to be heard before Mr. Justice Bailey. In opposition to said motion, the plaintiffs submitted an answering affidavit and contended that the defendants, by their acts and conduct, had waived and were estopped from asserting the Statute of Limitations, as a defense, in that said defendants had lulled the plaintiffs into the belief that their claims would be settled and that no legal action was or would be necessary. After a consideration of the affidavits presented by both sides, Justice Bailey rendered an opinion, dated April 17, 1959, granting the motion and an order was entered on June 29, 1959 dismissing the complaint. In July of 1959, the plaintiffs commenced the present action and in and by the first three causes of action alleged in the complaint, they again seek to recover for the same personal injuries and property damage as alleged in the complaint in the first action. However, in the complaint in the present action, the plaintiffs allege certain additional allegations wherein they assert that the moving defendants, by their aforesaid acts and conduct, had waived and were estopped from asserting the Statute of Limitations, as a defense.
It is clear that when Mr. Justice Bailey made his determination, as above mentioned, he found: (1) that a period of more than three years having elapsed between the date of the accident and the time when the said first action was instituted, the Statute of Limitations ivas a valid bar to the action; and (2) that the showing made and presented by the plaintiffs in opposition to said motion to dismiss the complaint was insufficient, in fact and in law, to avoid the bar of the Statute of Limitations.
In this court’s view, the order of Mr. Justice Bailey having been entered on a motion made pursuant to rule 107 of the
Accordingly, the motion to dismiss is granted with respect to the first, second and third causes of action alleged in the present complaint as against the movants herein. In view of this disposition, this court does not deem it necessary to pass upon the companion motion made by these movants for a dismissal of said three causes of action pursuant to subdivision 5 of rule 107 of the Buies of Civil Practice. It may be noted that the subject complaint contains a fourth cause of action in favor
Settle order on notice.