is served within the 60 day period. The delivery requirement is not precisely an aspect of the method of service, which would be governed by federal law, nor is its precise method of accomplishment so integral a part of the state's tolling requirement as to require literal compliance with state law. The statute seeks to assure that within the normal limitations period the summons is delivered to an official who can be relied upon to make an official record of its receipt, thereby avoiding disputes as to timeliness of delivery. Permitting federal counterparts to serve this function does not impair any state interest in establishing limitations on the time for suit."
"Judge Ryan made the point forcefully in the first of the line of district court decisions cited above:
'There is no requirement that a litigant in an action pending in federal court call upon the services of a state official to either protect, enforce or enjoy the privileges granted to him by local law. The test to be applied under the rationale of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), is whether the litigant is receiving the same treatment that he would have in a state court, and this does not prevent a federal court from administering the state system of law in its own way in connection with "details related to its own conduct of business." Nola Electric Co. v. Reilly, 93 F. Supp. at 170 (quoting Cohen v. Beneficial Loan Corp. 337 U.S. 541, 555, 69 S. Ct. 1221, 1229-30, 93 L.ed. 1528 (1949).'
'The further question, however, is whether the federal court clerk may serve as the counterpart, not of the relevant county clerk, but of the relevant county sheriff. Had this suit been filed in state court, the plaintiffs would have been obliged to deliver the summons to the county sheriff, the designated official when the relevant county is outside New York City. Then District Judge Altimari faced this problem in Gold v. Jeep Corp., 579 F. Supp. 256 (E.D.N.Y. 1984), where the summons was also delivered to the district court clerk and the relevant county was outside New York City. Sensibly relying on Judge Ryan's rationale in Nola Electric, Judge Altimari found the delivery to be sufficient compliance with Section 203(b)(5)':
'What particular individual or official shall be authorized to serve as the depository for receipt of the summons is . . . a detail [that] does not affect substantial rights.'
Id. at 259-59. Judge Altimari was concerned that a contrary result would create two separate rules within the Eastern District, one for cases within New York City and another for cases outside New York City.
Though requiring delivery to the United States Marshal throughout the Western District would achieve a uniform rule, we agree with Judge Altimari that the clerk of a district court may serve as the depository for a summons, whether the relevant county is within or without New York City." Datskow, supra, at 1303-04.
Plaintiff argues, based on the language quoted above, that in a federal diversity case filing with just about anybody, in this case the Clerk of the Southern District, will be sufficient because public and objectively provable. However, this Court does not believe, as plaintiff suggests, that in Datskow the Court of Appeals intended to depart from its holding in Personis, citing Hanna v. Plumer, that the statute -- if literally complied with -- is available to federal diversity plaintiffs. Personis, 889 F.2d at 426, 427.
If we assume, as we must under the Arce case, that the State Supreme Court would conclude that delivery of the summons to any Sheriff other than the Greene County Sheriff was insufficient to comply with the Statute, then following the rationale of Gold and Personis, supra, we must conclude that filing with the Clerk of any district court other than the Northern District of New York, which includes Greene County, will also be insufficient to toll the statute of limitations. To do otherwise would encourage forum shopping and lead to inconsistencies, resulting in inequities.
This Court finds no basis for concluding that recent amendments to the New York C.P.L.R. effective July 1, 1992, which provide that a lawsuit is commenced upon the filing of the summons and complaint with the Clerk of Court, have any effect on this case, as the amendments are not retroactive, and this case was filed before July 1, 1992.
Furthermore, this Court does not consider it relevant to the case whether Ski Windham does business or advertises or solicits business within the boundaries of the Southern District of New York. Such concepts which evoke the Long Arm Statute, New York C.P.L.R. § 302, have no relationship to the issue presently before the Court. This Court's civil process runs the entire breadth of the State of New York, as does the civil process of the Supreme Court of New York sitting in any of the eight counties of this district.
The motion for summary judgment is granted and the action is dismissed as time barred. The Clerk shall enter final judgment.
Dated: White Plains, New York
July 27, 1992
Charles L. Brieant
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