Melba Lee v. Ann Schoppman (2010)

CLARIFICATION OF COURT'S DECISION ON MOTION FOR SUMMARY JUDGMENT (# 105 )

Before the court is the defendant's motion for reargument on the court's denial of its motion for summary judgment.   Although the court denies reargument, for the sake of clarity this memorandum further details the basis of the court's decision.   This decision does not replace the court's earlier decision, but simply elaborates it.

The plaintiff instituted her action for personal injuries following a motor vehicle accident.   Her suit was timely filed within the statute of limitations.   Due to certain failures by plaintiff's counsel, the court, Silbert, J. dismissed the suit on October 10, 2008.   The plaintiff had one year to commence a new action, which she did on September 19, 2009.   In the time between the date of dismissal and the September 19, 2009 service upon the defendant, the plaintiff commenced another suit, which was never returned to court.

The defendant moved for summary judgment on the basis of the statute of limitations.   The court understood the defendant's argument, both on the papers and at oral argument, to raise two dependent grounds.   First, that the plaintiff's lawsuit was barred by the statute of limitations and second, that the accidental failure of suit statute did not apply to save the action.   In denying summary judgment, the court held that the accidental failure of suit statute applied and therefore, saved the action.

The defendant now argues that the court failed to address the “alternate” ground for summary judgment, that the case was brought outside the applicable statute of limitations.   The court was of the impression that the two arguments were related and that a decision holding that the accidental failure of suit statute applied would necessarily imply that the statute of limitations argument failed.

The accidental failure of suit statute is a savings statute which allows a one-year extension from the date of dismissal of the original, timely commenced action.   Although the plaintiff commenced suit on June 19, 2009, by way of service on the defendant, it was never returned to court.   The present action was commenced within one year of the dismissal of the original action.   The court finds that the June 2009 suit has no bearing on the present action.   Accordingly, the statute of limitations argument fails, as the savings statute applies under the facts in the present case.   The motion for summary judgment is denied in toto.

Maureen M. Keegan

Keegan, Maureen M., J.