Commercial Division Blog
Claims Found to Have Been Timely Asserted in Initial Complaint That Never Was Served Because of Lack of Objection
On December 17, 2019, the Court of Appeals issued a decision in Vanyo v. Buffalo Police Benevolent Assn., Inc., 2019 NY Slip Op. 08980, holding that claims that were timely asserted in an initial complaint were timely even though that complaint was not served, explaining:
While recognizing that this case presents a unique procedural posture, we nevertheless conclude that plaintiff's first and second causes of action should be reinstated. Those claims, asserted in identical form in both the original and amended complaints, were timely interposed when plaintiff filed the original summons and complaint, i.e., when the action was commenced. The relation-back doctrine is therefore inapplicable. Although plaintiff failed to serve the original complaint, on this record, the claims should not have been dismissed under CPLR 306-b because defendants did not properly raise such an objection and thus waived it. However, we agree with the Appellate Division that plaintiff's fourth cause of action fails to state a due-process cause of action. We remit to the Appellate Division for consideration of defendant Buffalo Police Benevolent Association, Inc.'s argument, raised but not addressed on the appeal to that Court, that plaintiff's first cause of action should be dismissed pursuant to CPLR 3211(a)(7).
(Internal quotations and citations omitted).
It is not unusual for the statute of limitations to be an issue in complex commercial litigation. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions regarding whether a claim is barred by the statute of limitations.