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INDEX NO. 20550/2013E
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/21/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
CONSTANCE BROWN and BENITO H.
BROWN,
Plaintiff(s)
AFFIRMATION
- against -
Index # 20550/2013E
ASHLEY PUNTIEL and ARIF M.
CHOUDHRY,
ee — _ Defendant(s) — pees
COUNSELORS(S):
Michelle L. Garrison, Esq., an attorney duly admitted to practice law in the Courts
of this State, does hereby affirm the truth of the following under the penalties of perjury,
pursuant to C.P.L.R. 2106:
1 Tam an attorney associated with Law Office of Dennis C, Bartling, attorneys for
the defendants Ashley Puntiel andArif Choudhry, and I submit the following
statement, based upon an inspection of the records maintained by said attorneys,
which records your affirmant believes to be true.
This affirmation is submitted in support of the within application for an Order pursuant to
CPLR § 3211(a)(8) dismissing the complaint in the above entitled action and directing that
Summary Judgment be entered in favor of the defendant Ashley Puntiel and Arif M.
Choudhry upon the ground that this Court does not have jurisdiction of the person of the
defendant, and that the action is barred upon the grounds that the applicable statute of
limitations has expired together with such other and further relief as may be just and
proper.
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This is an action brought by plaintiff(s) to recover for personal injuries and other
damages allegedly sustained as a result of an automobile accident that occurred on
June 5, 2013, (See Police Report Exhibit “B”)
Upon information and belief, the above entitled action was commenced by the
filing of a Summons and Complaint in Supreme Court of New York, County of
the Bronx on February 14, 2013. (See Exhibit “A”).
The Defendant has not served an Answer with respect to the above action and
maintains that the instant motion is not an appearance in connection with the
same,
Defendants Ashley Puntiel and Arif Choudhry were never personally notified of
the suit, They were not served with a Summons and Complaint. No affidavits
alleging service has been provided to this office to date.
Pursuant to Section 321 lof the CPLR a motion can be made prior to the service of
an answer, Specificatly, Section 3211 (a) (8) which pertains to the objection of
lack of jurisdiction of the defendants person. See McKinney’s commentaries,
Civil Practice Laws and Rules, Section 3212:20 p. 327.
8. Section 306-b of the CPLR states: service of the summons with notice, third
party summons and complaint or petition with a notice of petition or order to show
cause.
Service of the summons and complaint, the summons with notice, third party
summons and complaint, or the petition with a notice of petition or order to show
cause shall be made within one hundred twenty days after the filing of the summons
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and complaint, summons with notice, third-party summons and complaint, summons
with notice, or petition provided that in an action or proceeding, except a proceeding
commenced under the election law, where the applicable statute of limitations is four
months or less, service shal! be made not later than fifteen days after the date on
which the applicable statute of limitations expires. If service is not made upon a
defendant within the time provided in this section, the court upon motion, shall
dismiss the action without prejudice as to the that defendant, or upon good cause
shown or in the interest of justice extend the time for service.
9. The Plaintiff did not serve defendants within one hundred and twenty days
of the filing of the summons and complaint.
10, CPLR 214(5) states, “the following action must be commenced within 3 years,
or action to recover damages for personal injury except as provided in Section
214(b), 214c, and 215.
il ‘The exception stated in CPLR 214(5) do not apply as the plaintiff seeks recovery
for personal injuries allegedly sustained in an automobile accident.
12. Since the statute of limitations expired on June 5, 2014, this action is barred by
the three year statute of limitations pursuant to CPLR 214(5).
13 Therefore, summary judgment based on section 321 1(a)(5) and 3212 of the CPLR
should be granted in favor of the defendants Ashley Puntiel and Arif M.
Choudhry and the plaintiffs complaint should be dismissed.
14. No previous application for the relief herein prayed for has been made
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WHEREFORE, your affirmant respectfully prays for an Order granting the relief
requested herein together with such other and further relief as this Court deems just and
proper.
Wd —~
Dated: Westbury, New York
December 21, 2016
Michelle L. Garrison, Esq.
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INDEX NO. 20550/2013E NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 12/21/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX CONSTANCE BROWN and BENITO H. BROWN, Plaintiff(s) AFFIRMATION - against - Index # 20550/2013E ASHLEY PUNTIEL and ARIF M. CHOUDHRY, ee — _ Defendant(s) — pees COUNSELORS(S): Michelle L. Garrison, Esq., an attorney duly admitted to practice law in the Courts of this State, does hereby affirm the truth of the following under the penalties of perjury, pursuant to C.P.L.R. 2106: 1 Tam an attorney associated with Law Office of Dennis C, Bartling, attorneys for the defendants Ashley Puntiel andArif Choudhry, and I submit the following statement, based upon an inspection of the records maintained by said attorneys, which records your affirmant believes to be true. This affirmation is submitted in support of the within application for an Order pursuant to CPLR § 3211(a)(8) dismissing the complaint in the above entitled action and directing that Summary Judgment be entered in favor of the defendant Ashley Puntiel and Arif M. Choudhry upon the ground that this Court does not have jurisdiction of the person of the defendant, and that the action is barred upon the grounds that the applicable statute of limitations has expired together with such other and further relief as may be just and proper. lof4 This is an action brought by plaintiff(s) to recover for personal injuries and other damages allegedly sustained as a result of an automobile accident that occurred on June 5, 2013, (See Police Report Exhibit “B”) Upon information and belief, the above entitled action was commenced by the filing of a Summons and Complaint in Supreme Court of New York, County of the Bronx on February 14, 2013. (See Exhibit “A”). The Defendant has not served an Answer with respect to the above action and maintains that the instant motion is not an appearance in connection with the same, Defendants Ashley Puntiel and Arif Choudhry were never personally notified of the suit, They were not served with a Summons and Complaint. No affidavits alleging service has been provided to this office to date. Pursuant to Section 321 lof the CPLR a motion can be made prior to the service of an answer, Specificatly, Section 3211 (a) (8) which pertains to the objection of lack of jurisdiction of the defendants person. See McKinney’s commentaries, Civil Practice Laws and Rules, Section 3212:20 p. 327. 8. Section 306-b of the CPLR states: service of the summons with notice, third party summons and complaint or petition with a notice of petition or order to show cause. Service of the summons and complaint, the summons with notice, third party summons and complaint, or the petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons 2 0f 4 and complaint, summons with notice, third-party summons and complaint, summons with notice, or petition provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shal! be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court upon motion, shall dismiss the action without prejudice as to the that defendant, or upon good cause shown or in the interest of justice extend the time for service. 9. The Plaintiff did not serve defendants within one hundred and twenty days of the filing of the summons and complaint. 10, CPLR 214(5) states, “the following action must be commenced within 3 years, or action to recover damages for personal injury except as provided in Section 214(b), 214c, and 215. il ‘The exception stated in CPLR 214(5) do not apply as the plaintiff seeks recovery for personal injuries allegedly sustained in an automobile accident. 12. Since the statute of limitations expired on June 5, 2014, this action is barred by the three year statute of limitations pursuant to CPLR 214(5). 13 Therefore, summary judgment based on section 321 1(a)(5) and 3212 of the CPLR should be granted in favor of the defendants Ashley Puntiel and Arif M. Choudhry and the plaintiffs complaint should be dismissed. 14. No previous application for the relief herein prayed for has been made 3 0f 4 WHEREFORE, your affirmant respectfully prays for an Order granting the relief requested herein together with such other and further relief as this Court deems just and proper. Wd —~ Dated: Westbury, New York December 21, 2016 Michelle L. Garrison, Esq. 4 of 4