Summary
discussing three-year statute of limitations for personal injury actions
Summary of this case from Consiglio v. Ward Trucking, LLCOpinion
2012-04-10
HYOWON KIM, respondent, v. Alvin CRUZ, et al., appellants, et al., defendant.
Buckley Zinober & Curtis, P.A., New York, N.Y. (Robert N. Mizrahi of counsel), for appellants. Yohan Choi, Flushing, N.Y. (Susan R. Nudelman and Daniel Fried of counsel), for respondent.
Buckley Zinober & Curtis, P.A., New York, N.Y. (Robert N. Mizrahi of counsel), for appellants. Yohan Choi, Flushing, N.Y. (Susan R. Nudelman and Daniel Fried of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Alvin Cruz and Mercedes Benz USA appeal from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered January 14, 2011, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured on October 20, 2007, when she was struck, in an intersection, by a car driven by the defendant Alvin Cruz and owned by the defendant Mercedes Benz USA (hereinafter together the appellants). The plaintiff initially commenced an action to recover damages for negligence in the United States District Court for the Southern District of New York (hereinafter the District Court). After discovery, the District Court dismissed the action for failure to prosecute. On April 28, 2010, before the expiration of the three-year statute of limitations ( see CPLR 214), the plaintiff commenced the instant action in the Supreme Court, Queens County, based upon the same allegations. The appellants moved to dismiss the complaint as time-barred.
CPLR 205(a) is a tolling provision, which “serves the salutary purpose of preventing a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action” ( United States Fid. & Guar. Co. v. Smith Co., 46 N.Y.2d 498, 505, 414 N.Y.S.2d 672, 387 N.E.2d 604; see generally Matter of Billman v. Port Jervis School Dist., 84 A.D.3d 1367, 1370, 924 N.Y.S.2d 541; Franchise Acquisitions Group Corp. v. Jefferson Val. Mall Ltd. Partnership, 73 A.D.3d 1123, 1124, 900 N.Y.S.2d 906; Sullivan v. Nimmagadda, 63 A.D.3d 908, 908–909, 882 N.Y.S.2d 164). Although the appellants are correct that the six-month extension provided by CPLR 205(a) is not available to a plaintiff whose prior action was dismissed for neglect to prosecute, the provision has no application in this case, in which the statute of limitations has yet to expire ( see Boyea v. Fiore, 176 A.D.2d 1003, 1003–1004, 575 N.Y.S.2d 171). “Where, as here, the statutory time limit has not expired, due to a toll or otherwise, this section cannot be applied in such a way as to shorten the period otherwise available to the plaintiff” ( United States Fid. & Guar. Co. v. Smith Co., 46 N.Y.2d at 505, 414 N.Y.S.2d 672, 387 N.E.2d 604; see Boyea v. Fiore, 176 A.D.2d at 1004, 575 N.Y.S.2d 171). Accordingly, the Supreme Court properly denied the appellants' motion to dismiss the complaint as time-barred.
The appellants' remaining contentions are not properly before this Court, as they are raised for the first time on appeal.