Guastella v. Reichenback

CourtUnited States State Supreme Court (New York)
Writing for the CourtGOLD
Citation145 N.Y.S.2d 696,208 Misc. 887
Decision Date26 October 1955
PartiesConcetta GUASTELLA and John Guastella, Plaintiffs, v. Ernest REICHENBACK, a/k/a Ernest Rickenbacker, Defendant.

Page 696

145 N.Y.S.2d 696
208 Misc. 887
Concetta GUASTELLA and John Guastella, Plaintiffs,
v.
Ernest REICHENBACK, a/k/a Ernest Rickenbacker, Defendant.
Supreme Court, Special Term, New York County, Part III.
Oct. 26, 1955.

Harry R. Schwartz, Brooklyn, for plaintiffs.

William C. Morris, for defendant.

[208 Misc. 888] GOLD, Justice.

Defendant moves pursuant to Rule 107(5), Rules of Civil Practice, for dismissal of each of the causes stated in the complaint upon the ground that they are barred by the Statute of Limitations. Each cause accrued July 18, 1948. Defendant was discovered at his present residence in the States of New Jersey in June 1955, when this suit was initiated by service of the summons and complaint upon the Secretary of State. At the time of the accident defendant was a resident of this state and the time of his departure therefrom is unknown. It does not appear that he dwelled at any time within the state under an assumed name.

If defendant had not left the state after accrual of the cause and until more than three years thereafter, the service of the summons would be obviously untimely. The invocation of the provisions of the Vehicle and Traffic Law necessarily implies a departure from the state after accrual and before the passage of three years. Such departure and continued absence for four months or more would ordinarily toll the running of the statute, Section 19, Civil Practice Act. However, that statute also provides that it is inapplicable where a designation, voluntary

Page 697

or involuntary, is made pursuant to law. In the circumstances here, Section 52-a of the Vehicle and Traffic Law is applicable. Consequently, defendant's absence is unavailable and the time of such absence is part of the time limited for the commencement of suit. In any view of the facts, whatever they may be, the cause is one which requires commencement of suit within three years from accrual of the cause.

The motion is granted.

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3 practice notes
  • Ferraro v. Ferro Trucking Co., No. L--6021
    • United States
    • Superior Court of New Jersey
    • February 14, 1962
    ...both voluntary and involuntary designations. Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188 (Sup.Ct.1956); Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696 Considering that this cause of action arose in New Jersey, together with the broad language of N.J.S. 2A:14--22, N.J.S.A., ......
  • Caruso v. Bard
    • United States
    • United States State Supreme Court (New York)
    • November 27, 1959
    ...Vehicle and Traffic Law, § 52 or § 52-a is, since the passage of Chapter 263 of the Laws of 1943 sufficient. Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696; Maryland Casualty Co. v. Draney, 2 Misc.2d 637, 155 N.Y.S.2d 845; Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188; Harvey......
  • King v. Killum
    • United States
    • New York City Court
    • April 17, 1963
    ...apply (see Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188; Caruso v. Bard, 20 Misc.2d 887, 194 N.Y.S.2d 535; Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696; Maryland Casualty Co. v. Draney, 2 Misc.2d 637, 155 N.Y.S.2d In the Law Revision Commission Report of 1943 referring to ......
3 cases
  • Ferraro v. Ferro Trucking Co., No. L--6021
    • United States
    • Superior Court of New Jersey
    • February 14, 1962
    ...both voluntary and involuntary designations. Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188 (Sup.Ct.1956); Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696 Considering that this cause of action arose in New Jersey, together with the broad language of N.J.S. 2A:14--22, N.J.S.A., ......
  • Caruso v. Bard
    • United States
    • United States State Supreme Court (New York)
    • November 27, 1959
    ...Vehicle and Traffic Law, § 52 or § 52-a is, since the passage of Chapter 263 of the Laws of 1943 sufficient. Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696; Maryland Casualty Co. v. Draney, 2 Misc.2d 637, 155 N.Y.S.2d 845; Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188; Harvey......
  • King v. Killum
    • United States
    • New York City Court
    • April 17, 1963
    ...apply (see Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188; Caruso v. Bard, 20 Misc.2d 887, 194 N.Y.S.2d 535; Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696; Maryland Casualty Co. v. Draney, 2 Misc.2d 637, 155 N.Y.S.2d In the Law Revision Commission Report of 1943 referring to ......

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