Published on:

Defendant Claims Statute of Limitations has Run, New York Appellate Court Disagrees


A man moves to dismiss the personal injury action filed against him on the ground that the action is barred by the law of limitations. A New York Injury Lawyer said the complainant cross-move the action to consolidate it against the man with another pending action arising out of the same slips and fall. The record establishes that the man is not entitled to the relief he seeks and that consolidation of the actions is appropriate.

The abovementioned actions arise out of when the complainant slip and fallon an icy walkway at a mobile home park then owned by the man. The particular lot where the complainant fell was rented by a couple. The complainant’s contend that the man, who rented the lot, was employed by the man to supervise the mobile home park. The pending personal injury action against the man was commenced more than three years after the complainants ’cause of action accrued. The complainant also contend that because an employer-employee relationship existed between his opponents, he is entitled to the benefit of the relation back principle and that the claim against the man is therefore deemed to have been interposed when the complaint was served in the action against the man’s employee.

The man points out that he was originally named as an opponent in the complainant’s timely-commenced action but was never served and therefore, the action against him was automatically dismissed. For that reason, because the additional 120-day period had also expired, the complainants’ motion to permit expedited service on the man in that action was denied by the decision of the court. The complainant thereafter purchased a new index number, initiated a new action against the man and obtained an order permitting expedited service on man and to effect on such service.

Based on records, the automatic dismissal of the prior action against the man was not on the merits and does not preclude the new action. A Queens Personal Injury Lawyer said the ruling was designed to increase state revenue. The complainants’ purchase of a new index number served the ruling purpose. The ruling was not intended to shorten the period in commencing a new action. Accordingly, the dispositive issue on the man’s motion to dismiss is whether the complainants are entitled to the benefit of the relation back principle.

The complainant’s clearly knew of the man’s potential liability from the outset, for they named him as an opponent in the original action. It is equally clear, however, that the complainant did not intentionally abandon their claim against the man. According to the complainant’s counsel, service of process on the man was not in effect because the man had moved from his last known address and could not be found. In addition, the complainants’ counsel learned that the man had been discharged in bankruptcy. Nevertheless, the counsel alleges that extensive nonparty discovery was conducted in an effort to ascertain whether the bankrupt and missing man had any insurance coverage on the premises which might not be protected by the discharge in bankruptcy. The counsel was finally able to determine the existence and identity of the insurer of the premises where the slip and fall occurred through the files of the insurance company. Coincidentally, a Staten Island Personal Injury Lawyer said the insurer also insures the employee of the man and according to the complainants’ counsel, the employee of the man repeatedly denied that it insured the man. After discovering the existence of insurance coverage, the complainants’ attempted to proceed against the man in the original action, which was unsuccessful because of the automatic dismissal and then commenced the new action.

With regard to the cross motion, the consolidation of the two actions which involve common questions of fact is clearly appropriate. Consequently, the cross motion is therefore granted and the two actions are hereby consolidated into an action.

The New York Slip and Fall Attorneys are always ready to provide beyond ordinary defense especially when your case is within the scope of expertise. If you seek help or assistance when you or your company is in trouble because someone is claiming accident or injury against you, the New York Personal Injury Attorneys or New York Accident Attorneys at Stephen Bilkis and Associates can represent you against any lawsuit.

Contact Information