SADEK v. STEWART, N.Y. App. Div., Judgment, Law, casemine.com

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Factual and Procedural Background

Respondents were injured in an automobile collision on May 3, 1967 in Essex County, New York, when the automobile owned and operated by respondent Fawzy Sadek collided with an automobile owned by appellant Nisbet (a resident of the Province of Quebec) and operated by appellant Stewart (a resident of the Province of British Columbia). Other respondents were passengers in the Sadek automobile.

Respondents attempted to effect service under section 253 of the Vehicle and Traffic Law by serving the Secretary of State on May 1, 1970 and by mailing papers to the appellants by registered mail. The registered mail for both appellants was returned stamped "unknown" and, despite further attempts, no mailing to the appellants was ever completed.

On June 8, 1970 Special Term signed an order authorizing substituted service pursuant to CPLR 308(5), "by means sufficient under the rule of Dobkin v. Chapman (21 N.Y.2d 490)." The appellants answered on July 8, asserting the Statute of Limitations as an affirmative defense. Respondents moved to strike that defense and Special Term granted the motion. The Appellate Division considered the appeal from that order and affirmed.

Legal Issues Presented

Whether the Statute of Limitations was tolled until jurisdiction over the appellants was acquired (i.e., whether service upon the Secretary of State on May 1, 1970 tolled the limitation period).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
<i>Dobkin</i> v. <i>Chapman</i> (21 N.Y.2d 490)	Rule concerning sufficiency of substituted service procedures.	The Special Term's order providing for substituted service under CPLR 308(5) was authorized "by means sufficient under the rule of Dobkin v. Chapman."
<i>Bauman</i> v. <i>Fischer</i>, 12 A.D.2d 32	Referenced in connection with jurisdictional questions.	Cited to indicate related authority on jurisdictional matters; the court noted it was not concerned with jurisdictional questions in this appeal.
<i>Howland</i> v. <i>Girogetti</i>, 12 A.D.2d 953	Referenced in connection with jurisdictional questions.	Cited alongside Bauman to show related authority; the court stated it was not addressing jurisdictional questions here.
<i>Canada Gen. Ins. Co.</i> v. <i>Pierson</i>, 27 A.D.2d 484	Principle that service upon the Secretary of State tolls the Statute of Limitations.	The court relied on this authority to hold that the limitations period was tolled by service on the Secretary of State on May 1, 1970.
<i>Glines</i> v. <i>Muszynski</i>, 15 A.D.2d 435	Principle that service upon the Secretary of State tolls the Statute of Limitations.	Used together with Canada Gen. Ins. Co. to support the conclusion that service upon the Secretary of State tolled the limitations period.

Court's Reasoning and Analysis

The court affirmed Special Term's conclusion that the Statute of Limitations was tolled until jurisdiction was acquired. It reasoned as follows:

Although the appellants were nonresidents, the Statute of Limitations continued to run in their favor because they were amenable to process in New York, as reflected by CPLR 207.
Nevertheless, the court held that the limitations period was tolled by the respondents' service of the summons upon the Secretary of State on May 1, 1970. The court relied on prior authority (Canada Gen. Ins. Co. v. Pierson and Glines v. Muszynski) establishing that such service tolls the statute.
The Special Term's order allowing substituted service under CPLR 308(5) (using means sufficient under the rule of Dobkin v. Chapman) was part of the procedural history but the dispositive legal point was the tolling effect of the Secretary of State service.

Holding and Implications

Holding: The order of Special Term was affirmed; the limitations period was tolled by service upon the Secretary of State on May 1, 1970, and the respondents' motion to strike the Statute of Limitations defense was properly granted. Costs were awarded to the respondents.

Implications: The direct effect is that the appellants' affirmative defense based on the Statute of Limitations was stricken because the limitations period had been tolled by the service on the Secretary of State. The opinion does not announce or discuss any broader precedent beyond its reliance on existing authorities and does not indicate that a new legal rule was established.

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FAWZY S. SADEK et al., Respondents, v. JOHN D. STEWART et al., Appellants. (Action No. 1.) FREDERICK F.S. SADEK et al., Infants, by Their Parents and Natural Guardian, FAWZY S. SADEK, et al., Respondents,

Appeal from an order of Supreme Court at Special Term, entered in Essex County, which granted respondents' motion to dismiss the affirmative defense of the Statute of Limitations contained in appellants' answers. The respondents were injured in an automobile collision occurring May 3, 1967 in Essex County, New York when the automobile owned and operated by respondent Fawzy Sadek was in a collision with an automobile owned by appellant Nisbet, a resident of the Province of Quebec and operated by appellant Stewart, a resident of the Province of British Columbia. The other respondents were passengers in the Sadek automobile. Respondents attempted to make service on the defendants pursuant to section 253 Veh. Traf. of the Vehicle and Traffic Law by serving the Secretary of State May 1, 1970 and by mailing the appropriate papers to the appellants by registered mail. The mail for both appellants was returned stamped "unknown" and despite other attempts to complete service, no mailing was ever completed. On June 8, 1970 an order was signed by Special Term which provided, by means sufficient under the rule of Dobkin v. Chapman ( 21 N.Y.2d 490), for substituted service on the defendants under CPLR 308 (subd. 5). The appellants answered July 8 and raised the affirmative defense of the Statute of Limitations. Respondents moved to strike the defense and the motion was granted. The appellants have appeared and we are not concerned with jurisdictional questions. (Cf. Bauman v. Fischer, 12 A.D.2d 32; Howland v. Girogetti, 12 A.D.2d 953. ) The only issue is whether the Statute of Limitations was tolled until jurisdiction was acquired. We agree with Special Term that it was. Although appellants were nonresidents, the Statute of Limitations continued to run in their favor because they were amenable to process in the State of New York. (CPLR 207.) The period of limitations was tolled, however, by service of the summons upon the Secretary of State May 1. ( Canada Gen. Ins. Co. v. Pierson, 27 A.D.2d 484; Glines v. Muszynski, 15 A.D.2d 435.) Order affirmed, with costs to respondents. Herlihy, P.J., Reynolds, Greenblott, Sweeney and Simons, JJ., concur.

SADEK v. STEWART