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Posted: January 13, 2015

Quick Review of CPLR 207: Tolling of the Limitations Period for Out-of-State Defendants

CPLR 207 governs the calculation of time for statute of limitations purposes when a defendant cannot be served in New York. It provides:

If, when a cause of action accrues against a person, he is without the state, the time within which the action must be commenced shall be computed from the time he comes into or returns to the state. If, after a cause of action has accrued against a person, that person departs from the state and remains continuously absent therefrom for four months or more, or that person resides within the state under a false name which is unknown to the person entitled to commence the action, the time of his absence or residence within the state under such a false name is not a part of the time within which the action must be commenced. If an action is commenced against a person described above, the time within which service must be made on such person in accordance with subdivisions (a) and (b) of section three hundred six-b of this chapter shall be computed in accordance with this section. This section does not apply: 1. while there is in force a designation, voluntary or involuntary, made pursuant to law, of a person to whom a summons may be delivered within the state with the same effect as if served personally within the state; or 2. while a foreign corporation has one or more officers or other persons in the state on whom a summons against such corporation may be served; or 3. while jurisdiction over the person of the defendant can be obtained without personal delivery of the summons to the defendant within the state.

As explained by the late Professor Siegel, CPLR 207 is of limited application.

If the defendant is subject to the jurisdiction of the New York courts without being personally served in the state, the toll for absence does not apply. So, when a basis of jurisdiction exists, such as under CPLR 301 or 302, on which service outside New York is authorized by CPLR 313, the toll of CPLR 207 does not apply, and this means that CPLR 207 and its absence toll does not apply in most cases. The advent of longarm jurisdiction, which is what CPLR 302 supplies, has reduced the utility of CPLR 207. . . .

It has been held that as long as service beyond the state is permissible, the absence toll is inapplicable even if service is difficult and the plaintiff has to move for an order for service as a last resort. If the defendant is regularly in New York, moreover, so that a diligent process server could get at him—as where the defendant was a New Jersey resident but worked in New York and was here daily—the purpose of this absence provision is not at hand and its toll does not apply.

Siegel, N.Y. Prac. § 53 (5th ed.) (emphasis added). Still, in a case where a defendant has been dismissed for lack of personal jurisdiction under CPLR 301 or 302, it stands to reason that the statute of limitations likely is tolled, meaning that if the defendant later takes acts subjecting it to jurisdiction in New York, a plaintiff should then be able to assert its claim even though the limitations period is (barring application of Section 207) long past.

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