Furey v. Milgrom
| Decision Date | 25 March 1974 |
| Citation | 44 A.D.2d 91,353 N.Y.S.2d 508 |
| Parties | Dorothy FUREY et al., Appellants, v. Harry MILGROM, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Mulholland, Minion & Roe, Garden City (John F. Mulholland, Garden City, of counsel), for appellants.
Marshall D. Sweetbaum, Flushing, for respondent.
Before HOPKINS, Acting P.J., and LATHAM, CHRIST, BRENNAN and BENJAMIN, JJ.
The Special Term granted summary judgment in favor of the defendant on the ground that this action to recover damages for personal injuries as the result of claimed negligence of the defendant was not timely brought (CPLR 214). The question is whether the action survived the Statute of Limitations where the plaintiffs affixed a copy of the summons and complaint on the door of the defendant's residence on the last day within the Statute of Limitations, but mailed the summons and complaint to the defendant the next day and beyond the statute (CPLR 308, subd. 4). We affirm the order of the Special Term.
The complaint alleges that the plaintiff wife, while riding her bicycle on a street in Flushing, New York, on May 25, 1968, was injured through the careless operation by the defendant of his automobile; it seeks damage for her injuries by a cause of action on her behalf and damages for the loss of her services and for medical expenses by a cause of action on behalf of the plaintiff husband. The three-year period of the Statute of Limitations would therefore have expired on May 25, 1971 (CPLR 214). An action, to be timely, would accordingly have had to be instituted on or before that date by service of the summons (CPLR 203, subd. (b), par. 1).
The affidavit of the process server states that he attempted to serve the defendant on May 19, 20, 21, 22 and 25, 1971, but was unable to do so with due diligence. The affidavit further avers that on May 25, 1971 he affixed the summons and complaint to the door of the defendant's residence, and on May 26, 1971 he mailed another copy of the summons and complaint to the defendant addressed to the same residence. On these facts the Special Term held that the action was not brought within the three-year period of the Statute of Limitations, since the act of mailing occurred one day without the period.
Subdivision (a) of CPLR 203 provides that the measurement of the statutory period within which an action must be commenced is computed from the time of the accrual of the cause of action to the time the claim is interposed; and paragraph 1 of subdivision (b) of CPLR 203 provides that a claim in a complaint is assertd when the summons is served upon the defendant. As service of process was made pursuant to subdivision 4 of CPLR 308, we must read its provisions to determine at what time service was complete, i.e., on May 25, 1971 or on May 26, 1971. In interpreting the statute, our concern is required to be given toward a strict but fair construction of its terms (cf. Korn v. Lipman, 201 N.Y. 404, 94 N.E. 861; Arnold v. Mayal Realty Co., 299 N.Y. 57, 60, 85 N.E.2d 616, 617; Howland v. Giorgetti, 12 A.D.2d 953, 210 N.Y.S.2d 890).
Subdivision 4 of CPLR 308 directs that 'where service * * * cannot be made with due diligence' personally on the defendant it may be made 'by affixing the summons to the door of * * * dwelling place * * * within the state of the person to be served and by mailing the summons to such person at his last known residence.' It is clear to us, as it was to the Special Term, that service by this method consists of two separate acts--one of affixing and the other of mailing--and that service cannot be considered complete until both acts are done.
All limitations of time are by definition arbitrary to a lesser or greater degree, hinging on the circumstances; and it follows that decisions interpreting the effect of the limitations may be in consequence arbitrary in the light of the circumstances. Whatever the effect of the limitations, the legislative judgment must be controlling and the rule to be applied must be subject to no areas of doubt (cf. Arnold...
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