Scott v. Rosenwitz

• Court: New York Supreme Court
• Writing for the Court: M. HENRY MARTUSCELLO
• Citation: Scott v. Rosenwitz, 213 N.Y.S.2d 196 (N.Y. Sup. Ct. 1961)
• Decision Date: 03 March 1961
• Parties: Deta SCOTT, Clifton Scott, Gloria Simmonds and Keith Simmonds v. Alex ROSENWITZ.

Page 196

213 N.Y.S.2d 196

Deta SCOTT, Clifton Scott, Gloria Simmonds and Keith Simmonds v. Alex ROSENWITZ.

Supreme Court, Special Term, Kings County, Part I.

March 3, 1961.

David A. Goldner, New York City, for plaintiffs.

Millard N. Bush, New York City, for defendant; Robert G. Sheller, New York City, of counsel.

M. HENRY MARTUSCELLO, Justice.

Defendant moves for a summary judgment pursuant to Rule 113 of the Rules of Civil Practice on the ground that the causes of action set forth in the complaint are barred by the Statute of Limitations as pleaded in his answer. The plaintiffs cross-move to strike said defense of Statute of Limitations as sham pursuant to Rule 103 of the Rules of Civil Practice.

On May 10, 1954 plaintiffs brought an action to recover damages claimed to have been sustained as a result of an automobile accident occurring on February 22, 1954. Examination of this court's records relative to that action reveals that a note of issue was filed for the September 1954 Term; and that on October 2, 1957 that action was marked 'off' the trial calendar for failure of plaintiffs to file a Statement of Readiness in accordance with the Special Rule of the Appellate Division, Second Department. It appears that on the 2nd day of October, 1958, said action was marked 'dismissed' pursuant to Rule 302 of the Rules of Civil Practice. Thereafter, plaintiffs made numerous motions to open their default and vacate the dismissal, but their efforts were unsuccessful and ended in a recent affirmance by the Appellate Division of this Department of the order denying their motion to reinstate the case.

The instant action involves the same parties and the same subject matter of the prior action and was commenced on or about the 23rd of December, 1959.

The defendant contends that this action is barred by the Statute of Limitations, Section 49, subd. 6, of the Civil Practice Act, since same was commenced more than five and one-half years after the happening of the accident upon which the action is based. Plaintiffs, on the other hand, contend that Section 23 of the Civil Practice Act saves the action. Section 23 reads in part as follows:

'If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, * * *, may commence a new action for the same cause after the expiration of the time so limited and...