Summary
In Abrams, the plaintiff's action accrued on March 3, 1987; he forwarded the summons and complaint to the sheriff on February 28, 1990, which extended the limitations period until Wednesday, May 2, 1990; but the corporate defendant was not served until Friday, May 4, 1990. Mr. Abrams argued that, since the initial three-year limitations period ended on Saturday, March 3, 1990, two days should be added to the end of the extension period.
Summary of this case from Guardian Life Ins. Co. of Am. v. Goduti-MooreOpinion
November 8, 1993
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
On March 3, 1987, the car driven by the plaintiff, Arthur R. Abrams, was involved in an accident with a car operated by the defendant Kenneth S. Mandell and owned by the corporate defendant, Design Works, Inc. The plaintiffs forwarded a copy of the summons and complaint to the Nassau County Sheriff on February 28, 1990. Subsequently they served the corporate defendant by serving the Secretary of State on May 4, 1990.
The instant action was untimely commenced against the corporate defendant. The service upon the Sheriff prior to the expiration of the three-year Statute of Limitations (see, CPLR 214) caused an extension of that period by 60 days (see, CPLR 203 [b] [5]). However, the 60-day extension was measurable from the day the period of limitations expired, that is, March 3, 1990, regardless of whether that day fell on a Saturday. The plaintiffs would have had the benefit of the General Construction Law § 25-a, permitting them to serve the corporate defendant on the next business day, only if the 60-day period itself ended on a Saturday, Sunday, or public holiday, which was not the case here. Accordingly, service upon the Secretary of State more than 60 days after March 3, 1990, was untimely (see generally, Siegel, N Y Prac § 34, at 39; § 47, at 58 [2d ed]). Thompson, J.P., Balletta, Miller and Joy, JJ., concur.