Opinion
No. CA 06-03588.
March 14, 2008.
Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered October 12, 2006 in a personal injury action. The order granted the motion of defendant Buffalo Hotel Supply Co., Inc. to dismiss the amended complaint against it as time-barred.
GEORGE R. RICH, LACKAWANNA (CARL W. MORGAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WALSH WILKINS, BUFFALO (CHRISTOPHER E. WILKINS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law with costs, the motion is denied and the amended complaint against defendant Buffalo Hotel Supply Co., Inc. is reinstated.
Memorandum: In this action seeking damages for injuries allegedly sustained by plaintiff in August 1998, plaintiff purchased a new index number and filed an amended summons and complaint on December 1, 2005. She initially had commenced the action by filing a summons and complaint on August 14, 2001 under an index number that had been purchased for pre-action discovery. Supreme Court granted the motion of Buffalo Hotel Supply Co., Inc. (defendant) to dismiss the amended complaint against it as time-barred. That was error. At the time of defendant's motion, the appeal by plaintiff from the order of the same court granting the motion of the remaining defendants to dismiss the amended complaint against them as time-barred was pending before us. We reversed that order, denied the motion and reinstated the amended complaint against those defendants ( Majchrowicz v Kolpak, Inc., 38 AD3d 1186) and, for the reasons stated in our decision in that prior appeal, which defendant has failed to address, we conclude that the court erred in granting defendant's motion.