PATRICIA DEJOY PLAINTIFF APPELLANT v. KEVIN EHMANN DEFENDANT RESPONDENT (2014)

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

PATRICIA DEJOY, PLAINTIFF–APPELLANT, v. KEVIN M. EHMANN, DEFENDANT–RESPONDENT.

CA 13–01276

Decided: February 14, 2014

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.

FINUCANE & HARTZELL, LLP, PITTSFORD (DANIEL O'BRIEN OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICES OF KAREN L. LAWRENCE, PITTSFORD (BARNEY BILELLO OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant's motion to dismiss the complaint based upon plaintiff's failure to file a summons and complaint within the statute of limitations. Contrary to plaintiff's contention, we conclude that such nonfiling may not be corrected or disregarded pursuant to CPLR 2001 (see Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 328). The court also properly denied plaintiff's motion seeking permission to file the summons and complaint nunc pro tunc (see generally Mandel v. Waltco Truck Equip. Co., 243 A.D.2d 542, 543–544, lv denied 91 N.Y.2d 809), inasmuch as granting such relief would effectively extend the statute of limitations, a result proscribed by CPLR 201 (see Bradley v. St. Clare's Hosp., 232 A.D.2d 814, 815; De Maria v. Smith, 197 A.D.2d 114, 116–117).

Frances E. Cafarell

Clerk of the Court

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