YOUNG v. YAGER (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Howard F. YOUNG, Plaintiff-Appellant, v. Donna A. YAGER and Donna R. Yager, Defendants-Respondents.

Decided: October 01, 1999

PRESENT: LAWTON, J.P., HAYES, WISNER, PIGOTT, JR., and BALIO, JJ.

Francis E. Maloney, Jr., Syracuse, for Plaintiff-Appellant. Sherry R. Bruce, Syracuse, for Defendants-Respondents.

Plaintiff was injured in an automobile accident on August 2, 1994. He commenced this action by obtaining an order pursuant to CPLR 304 on August 6, 1997 and filing a summons with notice with the court clerk on that same day. Supreme Court properly dismissed the complaint as time-barred. CPLR 304 provides in relevant part that, “[w]here a court finds that circumstances prevent immediate filing, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence the action.” Contrary to plaintiff's contention, an application pursuant to CPLR 304 to extend the time to file a summons with notice must be made before the Statute of Limitations expires on the action. Here, plaintiff made his application to the court after the three-year Statute of Limitations had expired on his personal injury action (see, CPLR 214[5] ).

Order unanimously affirmed without costs.

MEMORANDUM:

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