You are here: / / ALTHOUGH THE INITIAL COMPLAINT WAS FILED BUT NEVER SERVED, THE CAUSES OF...

ALTHOUGH THE INITIAL COMPLAINT WAS FILED BUT NEVER SERVED, THE CAUSES OF ACTION IN THE COMPLAINT WERE TIMELY INTERPOSED AND THERE WAS NO NEED TO APPLY THE RELATION-BACK DOCTRINE TO THE AMENDED COMPLAINT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, held, in a brief memorandum, that the claims were timely asserted in a complaint which was filed but never served. The amended complaint included the same claims. Therefore the relation-back doctrine did not apply. The claims should not have been dismissed under CPLR 306-b because the defendants waived that objection:

… [W]e … conclude that plaintiff’s first and second causes of action should be reinstated. Those claims, asserted in identical form in both the original and amended complaints, were timely interposed when plaintiff filed the original summons and complaint, i.e., “when the action [was] commenced” (see CPLR 203 [c]; 304 [a]). The relation-back doctrine is therefore inapplicable (see CPLR 203 [f]). Although plaintiff failed to serve the original complaint, on this record, the claims should not have been dismissed under CPLR 306-b because defendants did not properly raise such an objection and thus waived it (see CPLR 320 [b]; 3211 [e]).

From the dissent:

Defendants each moved to dismiss the complaint—referring to the amended complaint—under CPLR 3211 (a) (5) and (7), claiming, amongst other things, that the first and second causes of action are untimely … . Plaintiff opposed the motion, asserting that these causes of action were timely interposed based on the filing of the unserved complaint. In its reply, the [defendant] requested dismissal of the unserved complaint pursuant to CPLR 306-b for lack of service within the statutory time period.

… [P]laintiff responded by filing a motion under CPLR 306-b to extend the time to file the unserved complaint and deem it timely served nunc pro tunc. * * *

Supreme Court,  … denied plaintiff’s CPLR 306-b motion, and … granted defendants’ motions to dismiss and dismissed “the complaint” with prejudice. The Appellate Division affirmed … .. The dispositive point of contention … was whether the first two causes of action were timely … . Vanyo v Buffalo Police Benevolent Assn., Inc., 2019 NY Slip Op 08980, CtApp 12-17-19

 

You might also like
“Outing” Confidential Informant Online Constituted Witness Tampering
Conclusory Allegations of Bad Faith in Negotiations Pursuant to a Settlement Agreement Did Not State a Cause of Action
THE JUSTICE FOR INJURED WORKERS ACT (JIWA) PROHIBITS GIVING COLLATERAL ESTOPPEL EFFECT TO WORKERS’ COMMPENSATION BOARD RULINGS IN SUBSEQUENT PERSONAL INJURY ACTIONS STEMMING FROM THE SAME INCIDENT, EVEN WHEN THE WORKERS’ COMPENSATION BOARD RULING PREDATES THE ENACTMENT OF THE JIWA (CT APP). ​
THE RECORD SUPPORTED THE SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE FOR CAUSING SERIOUS PHYSICAL INJURY TO A PEDESTRIAN WHILE FAILING TO EXERCISE DUE CARE; APPELLATE DIVISION REVERSED (CT APP).
ANY BRADY VIOLATIONS WERE NOT “MATERIAL” IN THAT THERE WAS NO REASONABLE POSSIBILITY THE EVIDENCE WOULD HAVE CHANGED THE JURY’S VERDICT, DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN GRANTED (CT APP).
Class Action Mechanism Is Available Where the Relevant Statute Imposes a Non-Mandatory Penalty and the Penalty Is Waived by the Class
(1) SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS, (2) SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD.
EVEN WHERE A SENTENCE HAS BEEN AGREED TO BY THE DEFENDANT AS PART OF A PLEA BARGAIN, AN INTERMEDIATE APPELLATE COURT IS OBLIGATED TO CONSIDER WHETHER THE SENTENCE IS UNDULY HARSH OR SEVERE, SEPARATE AND APART FROM WHETHER THE SENTENCE IS LEGAL (CT APP).

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

CPLR 3122 DOES NOT REQUIRE THE STATE COMPTROLLER TO ACQUIRE PATIENT AUTHORIZATIONS... FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WAS HANDLED PROPERLY, THERE WAS NO...