Charm-Tex, Inc. v. Sears, Roebuck and Co.

Full title: CHARM-TEX, INC., Appellant, v. SEARS, ROEBUCK AND CO., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 19, 1995

222 A.D.2d 304 (N.Y. App. Div. 1995)

635 N.Y.S.2d 595

Opinion

December 19, 1995

Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).

The Statute of Limitations was correctly reckoned as of the date service was properly made, it being of no consequence that defendant received actual notice of the action with the first, improperly served summons and complaint ( De Zego v Donald F. Bruhn, M.D., P.C., 99 A.D.2d 823, affd 67 N.Y.2d 875). Since there is no question that the first summons and complaint was not properly served and that second summons and complaint was not served within the limitations period, defendant's withdrawal of its defense of improper service as against the second summons and complaint did not preclude dismissal of the action as barred by the Statute of Limitations ( compare, Weinstein v General Motors Corp., 51 A.D.2d 335, with Byrne v Fordham Univ., 118 A.D.2d 525).

Concur — Murphy, P.J., Rosenberger, Ross, Nardelli and Mazzarelli, JJ.