Austrian v. Red Arrow Bonded Messenger Corp.

• Decision Date: 16 February 1959
• Citation: Austrian v. Red Arrow Bonded Messenger Corp., 184 N.Y.S.2d 92, 16 Misc.2d 1082 (N.Y. Sup. Ct. 1959)
• Parties: Edith AUSTRIAN and Paul Austrian v. RED ARROW BONDED MESSENGER CORP.
• Court: New York Supreme Court

Page 92

184 N.Y.S.2d 92

16 Misc.2d 1082

Edith AUSTRIAN and Paul Austrian v. RED ARROW BONDED MESSENGER CORP.

Supreme Court, Special Term, Queens County, Part I.

Feb. 16, 1959.

Morris U. Greenberg, New York City, for plaintiffs.

John P. Smith, New York City, for defendant.

CHARLES MARGETT, Justice.

The defendant, in an action to recover damages for personal injuries and loss of services, moves to dismiss the amended complaint on the grounds that there is a prior action pending between the same parties for the same relief and that the second action was not commenced until three years following the accident, which occurred on June 15, 1955 (Rules of Civil Practice, rule 107, subds. 3 and 5).

The original action was commenced on March 13, 1956. It was placed on the calendar for the September 1956 term of this court. It was struck from said calendar on October 2, 1957, for plaintiffs' failure to file a statement of readiness and dismissed by the clerk on October 2, 1958. By notice of motion, dated May 12, 1958, plaintiffs moved to extend the time to file their statement of readiness nunc pro tunc as of September 30, 1957, and thereupon to restore the action to its original place on the calendar. This motion was denied upon the ground that the plaintiffs were not yet ready for trial in that they had failed to serve a bill of particulars pursuant to demand and an order of preclusion (N.Y.L.J., June 6, 1958, p. 13, col. 3). Thereupon the plaintiffs commenced a new action by the service of a summons upon the defendant on September 22, 1958, based upon the same accident and damages upon which their original action was predicated.

When the summons in the second action was served on September 22, 1958, the original action was still pending in this court. It was merely struck off the calendar for plaintiffs' failure to file a statement of readiness by October 1, 1957, as required by the Special Rule of the Appellate Division, Second Department. The defendant, however, did not raise the question of the pendency of the first action until the motion papers herein were served on October 20, 1958, following the service of an amended complaint on October 17, 1958. By that time the first action had been dismissed pursuant to Rule 302 of the Rules of Civil Practice, which is incorporated by reference in Rule II, subdivision (e) of the Trial Term Rules of this court. Therefore, when the instant motion was made the prior action was no longer pending. Accordingly, the objection of the pendency of another action is no longer available to the defendant. See Gentilala v. Fay Taxicabs, Inc., 243 N.Y. 397, 399, 153 N.E. 848, and Watkins v. Pacific Finance Corp., 259 App.Div. 685, 20 N.Y.S.2d 599.

As for the remaining ground of the defendant's motion, that the second action was commenced more than three months after it was barred by the three year Statute of Limitations, Civil Practice Act, § 49, this court is of the opinion that the action is saved by the provisions of section 23 of the Civil Practice Act which, in substance, gives a plaintiff a year after a dismissal of an action, other than upon the merits, to sue again on the same cause of action. While it is true that section 23 excepts from its application cases which...