Symonds v. Root

• Decision Date: 29 January 1985
• Citation: 486 N.Y.S.2d 554,107 A.D.2d 1071
• Parties: Clifford A. SYMONDS, Appellant, v. Delores ROOT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 554

486 N.Y.S.2d 554

107 A.D.2d 1071

Clifford A. SYMONDS, Appellant, v.Delores ROOT, Respondent.

Supreme Court, Appellate Division Fourth Department.

Jan. 29, 1985.

Abelove, Siegel, Hester & Stephens by Camille Tauroney, Utica, for appellant.

Felt, Hubbard, Hopkins, Bach & Bogan by Thomas Bogan, Utica, for respondent.

Before DILLON, P.J., and HANCOCK, CALLAHAN, DENMAN and GREEN, JJ.

MEMORANDUM:

On January 13, 1984, three years and three days after he was injured in an automobile accident, plaintiff made service of the summons and complaint upon the Secretary of State pursuant to the Vehicle and Traffic Law § 253.However, the mailing required by subdivision 2 of that section was never made.

On February 14, 1984, plaintiff procured an order, pursuant to subdivision 5 of CPLR 308, authorizing service by mailing a copy of the summons and complaint to defendant's last known address, delivering a copy of the summons and complaint to defendant's insurance carrier and by publishing a copy of the summons in a Rome, New York newspaper.

Thereafter defendant moved to dismiss the complaint on the grounds of lack of jurisdiction and that the cause of action was barred by the Statute of Limitations.Special Term held that the action was barred by the Statute of Limitations (CPLR 214), and we affirm.

The issue, as framed by the parties, is whether the service upon the Secretary of State, despite the lack of mailing, tolled the statute until service under the CPLR 308order had been completed (seeSadek v. Stewart, 38 A.D.2d 655, 327 N.Y.S.2d 271).Acquiring jurisdiction under the Vehicle and Traffic Law § 253 requires substantial compliance with that statute(Metcalf v. Cowburn, 44 A.D.2d 650, 352 N.Y.S.2d 740), and without a mailing, there is not substantial compliance (Dickinson v. Houston, 97 A.D.2d 665, 469 N.Y.S.2d 207lv. denied61 N.Y.2d 606, 474 N.Y.S.2d 1025, 462 N.E.2d 1203;Metcalf v. Cowburn, supra).The attempted service under the Vehicle and Traffic Law was, therefore, jurisdictionally defective.Since the defendant did not waive the lack of jurisdiction, the statute continued to run (Yarusso v. Arbotowicz, 41 N.Y.2d 516, 393 N.Y.S.2d 968, 362 N.E.2d 600), and the action was time-barred when plaintiff secured his order authorizing service under CPLR 308.

Since the parties have not addressed the issue on this appeal, it would be inappropriate to decide whether plaintiff's unconsciousness for 12 days following the accident equates with the disability of "insanity" as that term is used in CPLR 208, thus to...