Opinion
October 10, 1963
Herbert C. Smyth for defendant.
Louis Norris for plaintiff.
Defendant moves pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice for dismissal of the amended complaint upon the ground that its maintenance is time-barred.
The action is in slander. The summons was served on May 20, 1963. The original complaint was mailed on July 16, 1963 and received on July 17, 1963. A similar motion was made for the dismissal of that complaint. It was initiated on July 26, 1963 and thereupon an amended complaint was served on July 31, 1963. Thereafter, the defendant by separate motion again moved for like relief dismissing the amended complaint. In the original complaint, plaintiff asserted a first cause based on an alleged slander occurring on May 14, 1962, and a second cause based on alleged slander occurring on May 18, 1962. In the amended complaint, two slanders are again alleged to have occurred respectively on May 28 and May 31, 1962. Defendant contends the amended complaint was received on August 1, 1963, more than one year after the occurrences and, therefore, maintenance of those causes is time-barred since the amended complaint does not relate back to the original complaint but contains new and independent causes.
Defendant overlooks the fact that the amended pleading was served as a matter of right and, therefore, relates back to the service of the summons, the time of commencement of action. It was so held in Guntzer v. County of Westchester ( 273 App. Div. 966, affd. 298 N.Y. 755). The Appellate Division there stated: "An action is deemed commenced as of the date of the service of the summons in respect of a cause of action in a subsequently served original complaint; or an amended complaint served as of course." The objection raised in the circumstances here might avail the defendant if the amendment were a matter of grace but this is not the fact.
Plaintiff asserts that dates were erroneously stated in the original pleading. That may be the fact since it appears that virtually the same slander is quoted for the new dates. However, the court need not make such a finding. For the plaintiff had not lost the right to assert by amendment as of course such causes as existed at the time of commencement of action.
The motion for dismissal of the amended complaint is denied. By virtue of the amendment, as a matter of right the motion for dismissal of the original complaint falls.