SALAMON v. CHARNEY (2000)

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

Fred E. SALAMON, Plaintiff-Respondent, v. Leon CHARNEY, et al., Defendants-Appellants.

Decided: February 17, 2000

TOM, J.P., RUBIN, ANDRIAS, BUCKLEY and FRIEDMAN, JJ.

Craig M. Gruber, for Plaintiff-Respondent. Saul Rudes, for Defendants-Appellants.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered July 14, 1999, which denied defendants' motion to dismiss the complaint as time-barred, unanimously affirmed, without costs.

This second action to recover a broker's fee was commenced after the six-year limitations period had run and after the January 1, 1998 effective date of current CPLR 306-b. Former CPLR 306-b(b) related this action back to the timely commencement of a prior action to recover such fee that was dismissed for lack of proper service after January 1, 1998 and after the limitations period had run. We note that the second action was commenced within 120 days of the dismissal of the first, as former CPLR 306-b(b) required (see, Zaleski v. Mlynarkiewicz, 255 A.D.2d 379, 679 N.Y.S.2d 669). Moreover, the “good cause” or “interest of justice” provisions of the current CPLR 306-b would apply to this case to extend plaintiff's time to serve (see, Memorandum of the Office of Court Administration # 97-67R, New York State Legislative Annual 1997, 318-319).

MEMORANDUM DECISION.

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