Cesar v. United Technology of New York

• Decision Date: 28 May 1991
• Citation: 570 N.Y.S.2d 25,173 A.D.2d 394
• Parties: Julio CESAR, et al., Plaintiffs-Respondents, v. UNITED TECHNOLOGY OF NEW YORK, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 25

570 N.Y.S.2d 25

173 A.D.2d 394

Julio CESAR, et al., Plaintiffs-Respondents, v. UNITED TECHNOLOGY OF NEW YORK, et al., Defendants-Appellants [And four other actions]

Supreme Court, Appellate Division First Department.

May 28, 1991.

Before ELLERIN, J.P., and WALLACH, ASCH and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Edward Greenfield, J.), 148 Misc.2d 918, 562 N.Y.S.2d 903, entered March 1, 1990, which granted plaintiffs' motion to restore these personal injury actions to the court's calendar, and which denied defendants' cross-motion to dismiss on statute of limitations grounds, unanimously affirmed, without costs.

Seven personal injury actions were separately commenced on various dates by spectators injured in an air show helicopter crash. Plaintiffs successfully moved to restore these actions to the trial calendar in the Supreme Court following defendants' breach of a condition not to assert the statute of limitations defense outside New York, after a prior New York County action was dismissed on forum non conveniens grounds. (Cappellini v. United Technology of New York, 79 A.D.2d 593, 433 N.Y.S.2d 807, appeal dismissed, 56 N.Y.2d 984, 453 N.Y.S.2d 681, 439 N.E.2d 396.)

Defendants now argue that it was improper for the court to designate March 23, 1978--the day on which the first of the summonses were served on defendants--as the date on which all summonses would be deemed served for statute of limitations purposes. We note that insofar as this determination was made in a prior order of the Supreme Court and not disturbed on appeal (Cappellini v. United Technology of New York, supra ), the determination constitutes the law of the case (see 1 Carmody-Wait 2d, New York Practice § 2:64).

Defendants' further argument that determination of the age of majority for statute of limitations tolling purposes is governed by CPLR 105(j) is, under the instant circumstances, without merit. That section defining infancy as terminating at 18 years must be read together with CPLR 105(a); Section 105 definitions apply "unless the context requires otherwise ..." This is such a case. Plaintiffs, who were infants at the time of the mishap, are domicilaries of Uruguay, where the age of majority is 21 years of age. Insofar as the law of the domicile determines the age of majority (In re Sikes' Will, 77 Misc.2d 63, 352 N.Y.S.2d 391 [Surrogate's Ct., Erie County, 1974], it is plain from the record that each of these plaintiff...