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BELLOTTO v. SKI ROUNDTOP

July 27, 1992

IVAN R. BELLOTTO, Plaintiff, against SKI ROUNDTOP, INC., et al., Defendants.


The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, Chief Judge

 In this diversity personal injury case regulated by New York Law, plaintiff has discontinued voluntarily as against all defendants except Ski Windham Operating Corp. The sole remaining defendant now moves for summary judgment in its favor pursuant Fed. R. Civ. P. 56 on the ground that the action is barred by the statute of limitations. Alternative relief which need not concern us also is sought in the motion.

 Mr. Bellotto sues to recover damages for personal injuries allegedly sustained on January 21, 1989 as a result of a skiing accident at defendant's premises located at Windham, in Greene County, New York.

 The summons and verified complaint were filed in the Office of the Clerk of the Southern District of New York on January 21, 1992, on the last day prior to the expiration of the applicable three year limitations period under New York law. Service was effected on the defendant more than three years after the claim accrued. Such service was effected by delivery of the summons and complaint to the Secretary of State at Albany, New York on January 27, 1992, 6 days after the applicable Statute of Limitations had expired.

 The sole issue on the motion is whether under the circumstances of this case the plaintiff may receive the benefit of New York C.P.L.R. § 203(b)(5), which provides a limited 60 day tolling period if the provisions of that statute are satisfied.

 The sole remaining defendant is a New York corporation having its sole place of business in the Town of Windham, County of Greene, State of New York, where the claim arose. It does not conduct business anywhere else, and its officers, directors and persons authorized to accept service of process are not located or regularly found within the eight counties comprising the Southern District of New York, the County of Greene having been removed by Congress from this district in 1975. That one of them might conceivably be served with process within the Southern District because of a transitory passage on some fortuitous occasion, may be assumed, but is not considered relevant by the Court.

 Section 203(b)(5) of the New York C.P.L.R. provides in relevant part for a tolling period of 60 days when:

 "5. The summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant resides, is employed or is doing business, or if none of the foregoing is known to the plaintiff after reasonable inquiry, then of the county in which the defendant is known to have last resided, been employed or been engaged in business, or in which the cause of action arose; or if the defendant is a corporation, of a county in which it may be served or in which the cause of action arose; provided that;

 (i) the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision; or . . . ." (emphasis added).

 Essentially, defendant argues and this Court agrees, that plaintiff is not entitled to the tolling benefits of § 203(b)(5) of the New York C.P.L.R. because the summons was not filed with the Clerk of the United States District Court of the Northern District of New York.

 In Gold v. Jeep Corporation, 579 F. Supp. 256 (E.D.N.Y. 1984) (Altimari, J.), the Court held that:

 The holding in Gold has been read literally by most district courts in this circuit and was cited with approval by our Court of Appeals in Datskow, infra. In Levy v. Pyramid Co. of Ithaca, 687 F. Supp. 48 (E.D.N.Y. 1988), aff'd, 871 F.2d 9 (2d Cir. 1989), the court considered whether filing in the District Court of Maryland, in a case thereafter transferred to the Northern District of New York for want of ...


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