Donohue v. Schwartz

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: Donohue v. Schwartz, 570 N.Y.S.2d 542, 174 A.D.2d 318 (N.Y. App. Div. 1991)
• Decision Date: 04 June 1991
• Parties: Shirley DONOHUE, Plaintiff-Respondent v. Jerold SCHWARTZ, M.D., Defendant-Appellant.

Page 542

570 N.Y.S.2d 542

174 A.D.2d 318

Shirley DONOHUE, Plaintiff-Respondent v. Jerold SCHWARTZ, M.D., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 4, 1991.

Before SULLIVAN, J.P., and ELLERIN, WALLACH, ROSS and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Eve Preminger, J.), entered July 13, 1990, which denied defendant's motion to confirm the report of the Special Referee recommending dismissal of the action for lack of personal jurisdiction, and granted plaintiff's motion to dismiss defendant's affirmative defense of lack of personal jurisdiction, unanimously reversed, on the law, the motion to confirm the report granted, the motion to dismiss the affirmative defense denied, and the action is dismissed, with costs.

The issue of law raised on this appeal is whether the statute of limitations is tolled by the delivery of process to a person of suitable age and discretion pursuant to CPLR 308(2), thus rendering without jurisdictional consequence a conceded failure to mail the process to either defendant's last known residence or actual place of business within the limitations period. (The purported delivery of process was made on January 25, 1988; there was no mailing until August 2, 1988; the act of medical malpractice on which the action is based occurred on January 21, 1986. We note that CPLR 308[2] was amended, effective January 1, 1989, to require that the delivery and mailing occur within 20 days of each other. Our ruling herein is made only with reference to the statute as it read prior to the amendment.) IAS held that the statute is tolled by such a delivery (citing, The Dominion of Canada General Insurance Company v. Pierson, 27 A.D.2d 484, 280 N.Y.S.2d 296 [involving service of process pursuant to Vehicle and Traffic Law, §§ 253 and 254]; Browning v. Nix, 47 Misc.2d 709, 263 N.Y.S.2d 42 [involving a failure to file proof of substituted service until after the statute of limitations had run]; Esteves v. Swobodzien, 195 Misc. 956, 90 N.Y.S.2d 844 [also involving a failure to file proof of substituted service within the limitations period], rejecting the Special Referee's recommendation to the contrary (citing, inter alia, the Second Department's decisions in Booth v. Lipton, 87 A.D.2d 856, 449 N.Y.S.2d 289; Brownell v. Feingold, 82 A.D.2d 844, 440 N.Y.S.2d 57; Glikman v. Horowitz, 66 A.D.2d 814, 411 N.Y.S.2d 365). This was error. We are in accord with the Second Department cases cited by the Special Referee clearly...