Summary
finding claim of breach related back to original claim against co-guarantor
Summary of this case from Mayer v. VilarOpinion
November 8, 1982
In an action, inter alia, to collect on a guarantee, defendant Edward D. Bright appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Roncallo, J.), dated June 19, 1981, which, inter alia, denied his motion to dismiss the action on the grounds of lack of jurisdiction and the Statute of Limitations. Order affirmed insofar as appealed from, with $50 costs and disbursements. The principal issues raised on this appeal are whether our courts have acquired in personam jurisdiction over defendant Bright and whether plaintiff's cause of action against him to recover on a guarantee of payment of the rents due on a lease of equipment is barred by the Statute of Limitations. Since defendant Bright concedes that he was served with a copy of the summons and complaint on November 19, 1979, it is clear that our courts have obtained jurisdiction over his person (cf. Morrison v. Foster, 80 A.D.2d 887, 888). With respect to the Statute of Limitations question, plaintiff's cause of action is founded upon an alleged breach by defendant Bright and his codefendants Smith and Hayutin, of their contractual obligation guaranteeing the payments due under the lease, and the claim must therefore have been interposed within six years from the breach (CPLR 213, subd 2). The contract of guarantee was jointly signed by Bright, Smith and Hayutin on December 10, 1968. It is undisputed that the codefendant Smith was served with the summons and complaint on June 21, 1974, within six years from the making of the contract and therefore certainly within six years from its alleged breach. We hold that the Statute of Limitations is not a bar to plaintiff's claim against Bright since with respect to that claim he is united in interest with his codefendant Smith and accordingly the date of claim interposition upon Bright relates back to the earlier date upon which Smith was served (CPLR 203, subd [b]; Connell v. Hayden, 83 A.D.2d 30, 42-43). Damiani, J.P., Thompson, Bracken and Boyers, JJ., concur.