Lennox v. Rhodes
| Decision Date | 18 May 1972 |
| Citation | 39 A.D.2d 801,332 N.Y.S.2d 268 |
| Parties | Byron LENNOX et al., Respondents, v. Hartwell D. RHODES, as President of Local 1127 of the Communications Workers of America, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
E. Stewart Jones, Troy (E. Stewart Jones, Jr., Troy, of counsel), for respondents.
F. Warren Travers, Troy, for appellants.
Special Term correctly rejected respondents' excuse, premised on the practice commitments of their attorney, for a 26-month delay in serving their complaint following appellants' demand for service (Kriegsman v. Rosenfeld, 35 A.D.2d 693, 314 N.Y.S.2d 601, app. dsmd. 29 N.Y.2d 633, 324 N.Y.S.2d 457, 273 N.E.2d 311). However, Special Term felt that since dismissal of the action would result in depriving respondents of their day in court due to the bar of the Statute of Limitations, it should grant respondents an extension of time to serve their complaint pursuant to CPLR 2004 to avoid such a result. Such action was clearly improper. CPLR 2004 may not be invoked to extend the Statute of Limitations (see Supplementary Practice Commentary by Joseph M. McLaughlin, McKinney's Cons. Laws of N.Y., Book 7b, CPLR 2004, 1971--1972 Suppl., p. 154; cf., CPLR 201; Practice Commentary by Joseph M. McLaughlin, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 201, p. 58). Accordingly, the order must be reversed and the appellants' cross-motion for the dismissal of the action granted.
Order reversed, on the law and the facts, and appellants' motion to dismiss the action granted, without costs.
To continue reading
Request your trial
-
Anderson v. Allstate Ins. Co.
...(see CPLR 201 ; Zayed v. New York City Dept. of Design & Constr. , 157 A.D.3d 410, 410, 66 N.Y.S.3d 124 [2018] ; Lennox v. Rhodes , 39 A.D.2d 801, 802, 332 N.Y.S.2d 268 [1972] ). To the extent not specifically addressed, plaintiff's remaining contention has been reviewed and found to be wit......
-
Bellini v. Gersalle Realty Corp.
...has an opportunity to prepare an adequate defense. See, Siegel, N.Y. Practice, § 49, 1985 Supp. p. 17. Lennox v. Rhodes, 39 A.D.2d 801, 331 N.Y.S.2d 268 (3d Dept., 1972) relied upon by the dissent, involves jurisdictional considerations stemming from untimely service of process that are not......
-
Kitch v. Markham
...argues, CPLR § 2004 may not be invoked to extend statutes of limitation which create substantive rights (Lennox v. Rhodes, 39 A.D.2d 801, 802, 332 N.Y.S.2d 268 [3d Dept.1972] ). Such unauthorized relief is precisely that which plaintiff seeks from the Court by way of his motion for leave to......
-
Hakala v. J.P. Morgan Securities, Inc.
...permits courts to extend various time periods, does not permit extension of statutes of limitations. E.g., Lennox v. Rhodes, 39 A.D.2d 801, 802, 332 N.Y.S.2d 268 (3d Dept.1972); Alvarez v. Thrifty Rent-A-Car System, Inc., 165 M.2d 979, 983 & n. 6, 630 N.Y.S.2d 912, 914 (Sup.Ct.N.Y.Co.1995).......