25 A.D.2d 891 | N.Y. App. Div. | 1966
Concurrence Opinion
concurs ir. '¡he result with the following memorandum: In my opinion, the proof at the hearing clearly established that in 1962 defendant Manlio 'Severino, on behalf of himself and certain of his eodefendants, including all respondents, agreed to accept service of the summons and complaint by mail in this action; that such service was made pursuant to that agreement; that, in reliance upon that agreement and the service made pursuant thereto, plaintiff made no attempt to effect personal service until 1964, when it became apparent that those defendants intended to repudiate their 1962 agreement to accept service by mail; and that, because of these facts, respondents are now estopped to assert the 'Statute of Limitations as a defense (Erbe v. Lincoln Rochester Trust Co., 13 A D 2d 211; Robinson v. City of New York, 24 A D 2d 260). In view of my conclu
Lead Opinion
In an action by a corporation formed to build, own and operate a co-operative apartment housing project for a judgment (1) directing defendants to account to plaintiff for the wrongful profits received by them; (2) adjudging that defendants are liable for the losses and damages suffered and to be suffered by plaintiff; (3) declaring that the rental provision of the lease between plaintiff, as tenant, and defendant Jayem Holding ¡Corp., as landlord, is null and void; (4) determining the correct and proper rental to be paid by plaintiff under said lease or, in the alternative, adjudging certain of the defendants liable to plaintiff for the excess ground rental to be paid in the future and (5) adjudging such defendants liable to plaintiff for the excess ground rental previously paid, plaintiff appeals from an order of the Supreme ¡Court, Westchester 'County, entered November 30, 1964, which, after a hearing on a reference to determine issues of fact, granted the motion of defendants J. S. Building Corp., Jayem Holding Corp., John A. Severino and Manlio S. Severino, made pursuant to CPLR 3211 (subd. [a], par. 5) to dismiss the complaint on the ground that the action is barred by the 6-year ¡Statute of Limitations (former Civ. Prac. Act, § 48, subd. 8; CPLR 218). Order reversed, with $10 costs and disbursements; •and motion denied, without costs. Respondents’ time to answer is extended until 20 days after entry of the order hereon. Defendant J. S. Building Corp. was the construction corporation, defendant Jayem Holding Corp. was the owner of the land and defendants John A. ¡Severino and Manlio S. Severino, an attorney, were in control of the corporate defendants. ' Said defendants were not officers, directors or stockholders of plaintiff. The action was one in equity (Clearview Gardens First Corp. v. Weisman, 206 Misc. 526, affd. 285 App. Div. 927) and the 10-year Statute of Limitations was applicable to this action against said defendants (former Civ. Prac. Act, § 53; CPLR 218; Augstem v. Levey, 3 A D 2d 595, affd. 4 N Y 2d 791; Qualtere v. Passerini, 11 A D 2d 875; Gottfried v. Gottfried, 269 App. Div. 413). In our opinion, the fact that the individual respondents may have controlled the persons who were nominally the officers and directors of plaintiff did not render the 6-year Statute of Limitations, provided for in subdivision 8 of section 48 of the former Civil Practice Act, applicable to them (see e.g., 1942 Report of N. Y. Law Rev. Comm., pp. 139-166). No contention is made that the issue, as to whether the 3-year Statute of Limitations, the 6-year statute or the 10-year statute is applicable, is not before us for review (also, see, Pager v. McCloskey, 305 N. Y. 75, 78; Walker v. Gerli, 257 App. Div. 249; CPLR 5501, subd. [a], par. 1).
