Paeuck v. Williams , 58 A.D.2d 974 ( 1977 )

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: Upon the discovery of the true identity of defendant Barry Williams no later than June 6, 1972 plaintiffs had available personal service without the State if defendant could be found, or substituted service pursuant to CPLR 308. Having failed to avail themselves of the statutory means available for obtaining in personam jurisdiction over defendant Barry Williams, the Statute of Limitations was not tolled between June 6, 1972 and October 30, 1975 when an order for substituted service was obtained from Special Term (see Yarusso v Arbotowicz, 41 NY2d 516; Goodemote v McClain, 40 AD2d 22). In excess of three years having expired between the time when plaintiffs ascertained the true identity of defendant and the effecting of substituted service by court order, plaintiffs’ action was time barred. (Appeal from order of Erie Supreme Court —dismiss complaint.) Present—Marsh, P. J., Moule, Cardamone, Simons and Goldman, JJ.