Summary
In Palm v. Jones, 74 Misc.2d 580 (N.Y.), the court, construing a statute which provides a sixty-day extension where the summons is delivered to the sheriff for service upon the defendant, held that the deposit of a letter containing the summons in a post office box was tantamount to delivery even though the letter was received after the running of the limitations statute.
Summary of this case from Zarillo v. PeckOpinion
June 23, 1973
Mario M. Albanese for plaintiffs.
William J. Stewart for defendants.
This is an action to recover for personal injuries and property damage allegedly sustained by the plaintiffs as a result of an automobile accident which took place on October 14, 1969. The defendants move to dismiss the complaint on the ground that the action is barred by the Statute of Limitations.
An examination of the motion papers discloses that on Friday, October 11, 1972, by letter bearing that date, plaintiffs' attorney mailed the summons to the Montgomery County Sheriff for service on the defendants by depositing same in a post-office box maintained by the United States Government in the City of Gloversville, New York; that the civil department of said Sheriff's office located in Fonda, New York, is closed on Saturday and Sunday of each week; that the records of the Sheriff's office disclose that plaintiffs' attorney's letter was received on October 16, 1972, and that the summons was personally served on the defendants on October 18, 1972 in Montgomery County where the defendants reside.
It is not necessary to consider the generally poor mail service prevailing during 1972 and particularly in the fall of that year. In my view, the summons was delivered to the Sheriff of Montgomery County when it was mailed to him on October 11, 1972 for service on the defendants. Deposit of the letter, containing the summons, in the post-office box was tantamount to delivery to the Sheriff. This was within three years from the accrual of plaintiffs' causes of action, and since the summons was personally served on the defendants on October 18, 1972, such service was timely and effectively made within the provisions of CPLR 203 (subd. [b], par. 5).
Defendants' motion must, therefore, be denied.