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Problems with Service of Process in Personal Injury Matter, NY Appellate Court Dismisses Action


The defendant third-party plaintiff-respondent in the case is the Waltco Truck Equipment Company. The plaintiff is Mark Mandel. The Coca-Cola Company is a third-party defendant, while the Industrial Truck Body is a third-party defendant-respondent.

Court Memo

A New York Injury Lawyer said an appeal was filed by the plaintiff to recover damages for personal injuries. On September 3rd, 1996, the Kings County Supreme court granted the motion by Waltco Truck Equipment Company, and Industrial Truck Body, the defendant and a third party defendant, to dismiss the initial complaint based on the non-compliance of the plaintiff with CPLR 306-b. The summons, complaint and affidavit of service included in the cross motion was denied.


The order is confirmed according to the appeal, including costs. Allegedly, the plaintiff sustained injury when working for the third party defendant, the Coca-Cola Company. Pre-action discovery started in 1992 when Mandel purchased Index No. 3926/92. On March 29th of the following year, the Waltco Truck Equipment Company was served with a summons and complaint of that number, after which Waltco initiated third-party action against the third-party defendants in the case.

The complaint lodged under the original index was filed with the Supreme Court, Kings County, on August 4th of 1994 under Index No. 24909/94. No summons or complaint was reserved, but the proof of service from the original summons and complaint made against Waltco in1993 was filed.

The complaint was moved for dismissal by Industrial Truck Body, a third-party defendant, and Waltco. They based this move for dismissal on the claim that CPL 306-b had not been adhered to. The Supreme Court granted this motion. A cross motion by the plaintiff to file the summons and complaint nunc pro tunc was also denied by the Supreme Court, correctly.

CPLR 306-a requires that a plaintiff has to purchase an index number and file their complaint with the court’s clerk in order to commence any action. Poley Paving Corp. V. United Cerebral Palsy Association of Sullivan County sets a precedent which shows that a personal injury action that is a new action against a second party rather than an adjunct of the pre-action discovery requires that CPLR 306-a must be complied with. This means that the plaintiff needs to again file a complaint and summons with the clerk while also purchasing a new index.

In the case of Mr. Mandel, these requirements were not met. The plaintiffs did not correctly follow the guidelines set out. A Queens Personal Injury Lawyer said the initial process served in March of 1993 was a nullity. Action against Waltco did not begin until index No. 3926/92 was filed.

The commencement of the action could not be waived despite the fact that jurisdictional defenses were not raised by Waltco. The Matter of Fry V. Village of Tarrytown is relevant, although some differences are apparent. The filing fee in the case at bar was not paid before the process was served. The summons and complaint were also not properly filed with the clerk. In the case of Matter of Fry, the papers filed were the problem, whereas the fee was properly paid which satisfied the principal interest of the court.

A Staten Island Personal Injury Lawyer said nunc pro tunc relief was requested based on the purchase of the August Index number, but as the action had not been initiated properly at the outset, there was in effect no action which nunc pro tunc would be applicable to.

In August of 1994, the action began properly when an index number was properly purchased and the summons and complaint were properly filed. The affidavit of service that was filed with the court referred to papers that were not properly filed, which results in the summons and complaint not being served to Waltco. The action was dismissed because proof of service wasn’t filed until beyond 120 days of the initial filing of summons and complaint.

When a legal difficulty arises, whether from a car accident, construction accident or medical malpractice issue, Stephen Bilkis & Associates can help you understand what options you have available to you. Our team will work carefully with you to ensure that your interests are protected in your specific circumstances. Offices are located through the metropolitan New York area, and you may call us at any time to receive a free consultation on your case.

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