Brownstein v. Schlanger , 55 Misc. 2d 904 ( 1968 )

I. Stanley Rosenthal, J.

Defendant moves to dismiss plaintiff’s summons and complaint for failure to comply with CPLR 203 and 214.

The basic and relevant facts in the case are conceded. It appears that the cause of action herein accrued October 17, 1964. The plaintiff issued a summons and complaint to the Sheriff of. Nassau County on October 17, 1967. The court holds that the service of the summons and complaint was effected within the 60-day period fixed by CPLR 203, after delivery to the Sheriff.

CPLR 203 (subd. [b], par. 4) permits delivery of the summons to the Sheriff. CPLR 214 states the Statute of Limitations to be three years.

The statutes must be read in conjunction with section 20 of the General Construction Law and the cases cited with respect to said law, which in all instances say that the date of the accrual of the action must be excluded in the reckoning of the Statute of Limitations. Since this action was commenced on October 17, 1967, and since we must exclude the date of the accrual of the action on October 17,1964, and since the summons was served within the 60-day period as provided in CPLR 203, the summons and complaint were timely served. (Rush v. Bauerle, 49 Misc 2d 595; Metropolitan Life Ins. Co. v. Schmidt, 299 N. Y. 428.)

The motion to dismiss the summons and complaint is accordingly denied.