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PETTUS v. HAVRDA

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


January 31, 1986

THEODORE T. PETTUS, Plaintiff, against DONALD HAVRDA, Defendant

The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J. :

 This is an action for personal injuries and property damage allegedly sustained by plaintiff as a result of defendant's negligence and recklessness. *fn1" Specifically, plaintiff alleges that he was attacked by defendant's dog while he was riding his bicycle in front of defendant's premises. Defendant's answer raises inter alia a statute of limitations affirmative defense and plaintiff has moved to strike that defense.

 Both parties substantially agree that the action would be time-barred unless plaintiff served the summons and complaint upon defendant on or before January 28, 1984. *fn2" See Affidavit of Peter Kolodny at P 7, Defendant's Memorandum of Law, at 10. Plaintiff claims that defendant was personally served on January 7, 1984. Defendant claims that he was not served until February 4, 1984. Thus, the only issue to be resolved by the Court is when service of the summons and complaint was effected.

 Defendant has the burden of proof on this issue because the statute of limitations is an affirmative defense in New York. See Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 243 (2d Cir. 1984).

 For the reasons which follow, the Court finds by a preponderance of the evidence that defendant was not served until February 4, 1984. Plaintiff's complaint therefore must be dismissed.

 An evidentiary hearing was held to determine when the defendant was served with the summons and complaint. *fn3" The defendant testified that he was served on February 4, 1984. See Hearing ("H"), at 38. He specifically recalled that date because he was wearing his tennis outfit when service was effected and he does not play tennis very often. Id. at 39. To corroborate his testimony, defendant produced a family calendar with the words "tennis Donald" written in for February 4, 1984. See Def. Ex. B.

 The defendant's testimony was corroborated by the testimony of his wife who was present in the house when defendant was served. She testified that she was certain that service was effected on February 4 because of the tennis date and because she wrote February 4 immediately on the copy of the summons and complaint when her husband was served. See Def. Ex. C; H. at 57. *fn4" She also testified that she would have remembered if service had occurred on January 7, 1984, because that was the date of her daughter's birthday party. See H. at 58. The family calendar further supports this contention. The Court finds the defendant's wife's testimony to be credible.

 This Court does not find persuasive the testimony of the sheriff that he personally served the defendant on January 7, 1984. See id. at 6. The sheriff had no independent recollection as to when service was actually made but based his testimony solely on a note in a manila work folder, which to date has never been produced. See id. at 21. *fn5" Having accepted as credible and correct testimony of defendant and his wife, the Court is constrained to conclude that the sheriff is mistaken as to the date when personal service was made on defendant. *fn6"

 Accordingly, the complaint must be dismissed with prejudice as time-barred under the applicable statute of limitations.

 It is SO ORDERED.


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