O'Keefe v. Baiettie

• Decision Date: 20 April 2010
• Parties: John O'KEEFE, appellant, v. Aronne BAIETTIE, defendant, Allison Sullivan, respondent.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 326

72 A.D.3d 916

John O'KEEFE, appellant,

v. Aronne BAIETTIE, defendant,Allison Sullivan, respondent.

Supreme Court, Appellate Division, Second Department, New York.

April 20, 2010.

Dupée & Monroe, P.C., Goshen, N.Y. (Jon C. Dupée, Jr., of counsel), for appellant.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Jonathan C. Sullivan of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for false arrest, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), dated August 8, 2008, as granted that branch of the motion of the defendant Allison Sullivan which was pursuant to CPLR 3211(a)(8), in effect, to dismiss the amended complaint insofar as asserted against her on the ground of lack of personal jurisdiction.

ORDERED that the order is reversed insofar as appealed from, on the law, the facts, and in the exercise of discretion, with costs, that branch of the motion of the defendant Allison Sullivan which was pursuant to CPLR 3211(a)(8), in effect, to dismiss the amended complaint insofar as asserted against her on the ground of lack of personal jurisdiction is denied, and the matter is remitted to the Supreme Court, Orange County, to determine that branch of the motion of the defendant Allison Sullivan which was, in effect, to dismiss the amended complaint insofar as asserted against her on the ground that she was improperly served with process pursuant to CPLR 308(4).

On September 27, 2007, the plaintiff commenced an action against the defendants, Aronne Baietti and Allison Sullivan, by filing a summons and complaint in the Supreme Court, Orange County. On October 5, 2007, without seeking leave from the court to amend his complaint, the plaintiff filed an amended complaint bearing the same index number as the original complaint. Aside from its title and date, and the fact that it contained exhibits omitted from the original complaint, the amended complaint was the same as the original complaint. Copies of the summons and amended complaint, but not the original complaint, allegedly were then served upon both defendants on October 27, 2007, pursuant to CPLR 308(4).

Sullivan moved, inter alia, pursuant to CPLR 3211(a)(8), in effect, to dismiss the amended complaint insofar as asserted against her on the ground of lack of personal jurisdiction, contending that the plaintiff failed to strictly comply with the commencement-by-filing requirements of CPLR 304 and 306-b by filing and serving the amended complaint without leave ofcourt under the same index number and without paying a new filing fee. The Supreme Court granted that branch of Sullivan's...