GALLO v. VENTIMIGLIA

Plaintiff's action for assault and battery, recommenced within 120 days of entry of the order dismissing his original action for invalid service, was properly found to have been timely pursuant to the governing statute, former CPLR 306-b(b). In the case at bar, plaintiff's counsel were only belatedly notified by their court-watching service of the order granting defendant's motion to dismiss the original action. Upon learning of the disposition, counsel promptly entered and served the order and then recommenced the action. In light of the foregoing, the motion court's determination to compute the running of CPLR 306-b(b)'s 120-day recommencement period from the date of service of notice of entry of the order granting the motion to dismiss the original action, rather than from the date of the order's issuance, was proper. Applying the statute as defendant advocates — while appealing at first blush — under the particular circumstances of this case would be inconsistent with the interpretive maxim that remedial statutes should be liberally construed to accomplish their remedial objectives (see, Scherrer v. Time Equities, 218 A.D.2d 116, 122-123).

Defendant's motion for the impostion of sanctions upon plaintiff was properly denied as baseless.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.