You are here: / / THE STATUTE OF LIMITATIONS DID NOT TOLL WHILE DEFENDANT WAS OUT OF STATE...

THE STATUTE OF LIMITATIONS DID NOT TOLL WHILE DEFENDANT WAS OUT OF STATE BECAUSE THE DEFENDANT COULD HAVE BEEN SERVED OUT OF STATE, PLAINTIFFS’ ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the statute of limitations did not toll while defendant was out of state and the action was therefore time-barred:

The plaintiffs’ contention that the action was timely because they were entitled to the benefit of the tolling provision of CPLR 207 based on the defendant’s alleged absence from the state did not raise a question of fact. Under that statute, as relevant here, when a defendant leaves the state after an action has accrued, and is continually absent from the state for at least four months, the time of the defendant’s absence is not included in the time during which the action must be commenced. This tolling provision, however, does not apply “while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state” (CPLR 207[3] …). In other words, the toll will not apply if there is a means by which the defendant may be served notwithstanding his or her absence from the state … . Here, even during his alleged absence from New York State, the defendant was subject to service of process (see CPLR 302[a][2]; 308[5]; 313 …). The plaintiffs did not submit evidence establishing that the defendant was attempting to evade service of process by, for example, living secretly in a foreign country, such that no means of service of process on him was available … . MP v Davidsohn, 2019 NY Slip Op 01069, Second Dept 2-13-19

 

You might also like
THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION BECAUSE OF THE POTENTIAL FOR A DEFICIENCY JUDGMENT AGAINST THE DECEDENT; DEFENDANT’S CROSS MOTION FOR LEAVE TO SUBSTITUTE HERSELF AS ADMINISTRATOR OF THE ESTATE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF, A SCHOOL PSYCHOLOGIST, WAS ASSAULTED BY AN AUTISTIC STUDENT; THE NEGLIGENT-PARENTAL-SUPERVISION CAUSE OF ACTION AGAINST THE STUDENT’S PARENTS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
EXPOSED TREE ROOT IN TOWN PARK WAS AN OPEN AND OBVIOUS CONDITION, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).
Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous
PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED.
BANK’S PROOF OF DEFENDANT’S DEFAULT INSUFFICIENT AT BOTH THE SUMMARY JUDGMENT AND TRIAL STAGES IN THIS FORECLOSURE ACTION (SECOND DEPT).
IN THIS TRAFFIC ACCIDENT CASE, THE COURT DID NOT HAVE JURISDICTION TO HEAR A MOTION TO DISMISS BROUGHT ON BEHALF OF THE DECEASED DEFENDANT BY DECEDENT’S FORMER ATTORNEYS WHO HAD NOT BEEN SUBSTITUTED FOR THE DECEDENT; PLAINTIFF’S MOTION TO HAVE DECEDENT’S DAUGHTER SUBSITITUTED AS A REPRESENTATIVE FOR THE DECEDENT REQUIRED NOTICE TO ALL PERSONS INTERESTED IN DECEDENT’S ESTATE (SECOND DEPT).
THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF WAS A NONMEMBER PURCHASER OF A MEMBER’S INTEREST IN THE LIMITED... CHILD’S MOTION FOR FINDINGS TO ALLOW HIM TO PETITION FOR SPECIAL IMMIGRANT...