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Stryker v. Stelmak

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 12, 2010

LARRY STRYKER, PLAINTIFF-RESPONDENT-APPELLANT,
v.
ALEX STELMAK, DEFENDANT-APPELLANT-RESPONDENT, STAN MASHOV, DEFENDANT-RESPONDENT, SIMONE . PALAZZOLO, ETC., ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Richard B. Lowe III, J.) entered December 5, 2007, which granted plaintiff's motion to extend time to serve summons and complaint only for causes of action for abuse of process and malicious prosecution, and denied such permission regarding all other causes, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, Moskowitz, DeGrasse, Abdus-Salaam, JJ.

117524/06

We reject defendant Stelmak's argument that extension of the 120-day period to effect proper service of an already filed summons and complaint (CPLR 306-b) may be granted only if no service, as opposed to improper service, was made within that period (Murphy v Hoppenstein, 279 AD2d 410 [2001]; see also Earle v Valente, 302 AD2d 353, 354 [2003]). "Such extensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service,' regardless of the expiration of the Statute of Limitations after filing and before service" (Murphy, 279 AD2d at 410-411 [internal citation omitted]). Plaintiff's efforts to serve defendants were reasonably diligent. This state court action asserted essentially the same state law claims alleged in his federal action, and was timely commenced within six months after that action was dismissed due to lack of subject matter jurisdiction (CPLR 205[a]; Jordan v Bates Adv. Holdings, 292 AD2d 205 [2002]). Defendants have not demonstrated any prejudice (see Griffin v Our Lady of Mercy Med. Ctr., 276 AD2d 391 [2000]).

Limiting the extension of time for service to the causes of action for malicious prosecution and abuse of process was not an abuse of the court's discretion. Plaintiff was collaterally estopped from contesting the absence of merit in his remaining causes (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]), as the time periods were previously determined by the federal court. Thus, such causes of action are barred by the applicable statutes of limitations. Plaintiff's theory that the limitations periods were tolled by operation of CPLR 203(e), raised for the first time on this appeal, is unpreserved for our review (see Sean M. v City of New York, 20 AD3d 146, 149-150 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100112

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