Riccio v. Ghulam

• Court: New York Supreme Court — Appellate Division
• Citation: Riccio v. Ghulam, 29 AD3d 558, 815 N.Y.S.2d 125, 2006 NY Slip Op 3567 (N.Y. App. Div. 2006)
• Decision Date: 02 May 2006
• Docket Number: 2005-08133.
• Parties: GRACE RICCIO, Respondent, v. TAHIR GHULAM et al., Respondents, WILLIAM G. FARRELL et al., Appellants, et al., Defendants.

29 A.D.3d 558

815 N.Y.S.2d 125

2006 NY Slip Op 03567

GRACE RICCIO, Respondent, v. TAHIR GHULAM et al., Respondents WILLIAM G. FARRELL et al., Appellants, et al., Defendants.

2005-08133.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 2, 2006.

In an action to recover damages for personal injuries, the defendants William G. Farrell, Beckmon Coultier, Inc., and Gelco Corp., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated July 5, 2005, as denied their motion to dismiss the complaint and all cross claims insofar as asserted against them pursuant to CPLR 3211 (a) (5) and granted the plaintiff's cross motion to extend her time to effect service of the summons and complaint upon them pursuant to CPLR 306-b.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the cross motion is denied, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

On January 3, 2001 the plaintiff was a passenger in a cab which was the second car in a four-car chain reaction rear end collision on the Gowanus Expressway in Brooklyn. The fourth car in that chain was driven by the defendant William G. Farrell and owned by the defendant Gelco Corp. (hereinafter Gelco).

By letter dated May 29, 2003, the plaintiff's former attorney informed Gelco of the involvement of Farrell (who counsel alleged was Gelco's driver) in the accident. It appears that Gelco then forwarded that letter to the defendant Beckmon Coulter, Inc. (hereinafter Beckmon).

Thereafter, by summons and complaint filed December 29, 2003, the plaintiff commenced this action against the alleged drivers and owners of the other three cars involved in this accident, as well as the appellants, Farrell, Beckmon, and Gelco (hereinafter collectively the appellants). It appears that four of the defendants were served with a copy of the summons and complaint before the expiration of the 120-day period provided for by CPLR 306-b. However, the plaintiff does not allege that she served or even attempted to serve any of the appellants or two other defendants.

Thereafter, the appellants moved to dismiss the complaint and all cross claims insofar as asserted against them, contending that the Supreme Court did not have personal jurisdiction over them as they had never been served and the applicable statute of limitations had expired. The plaintiff opposed the motion and cross-moved to extend her time to serve the appellants. Several of the defendants also opposed the appellants' motion on the ground that they had cross claims against the appellants. The Supreme Court, inter alia, denied the appellants' motion and granted the plaintiff's cross motion. We reverse.

It is undisputed that the plaintiff failed to comply with CPLR 306-b as she failed to effect service upon the...