GANDICA v SIBILIO [46 Misc 3d 85] 85
[4 NYS3d 467]
DANIEL GANDICA, Appellant, v ANTHONY E. SIBILIO, Respondent.
Supreme Court, Appellate Term, Second Department,
2d, 11th and 13th Judicial Districts, December 22, 2014
SUMMARY
APPEAL from an order of the Civil Court of the City of New
York, Queens County (Larry Love, J.), entered April 15, 2013.
The order denied plaintiff’s motion to dismiss the counterclaim.
HEADNOTE
Limitation of Actions — Defense or Counterclaim — Same Occur-
rence as Primary Claim
In an action commenced by plaintiff after the pendent state claims in his
prior federal action were dismissed without prejudice following settlement of
his federal law claims, defendant’s counterclaim, which had been voluntarily
discontinued in the prior federal court action and was not filed here within
the applicable one-year statute of limitations (CPLR 215 [3]), was nevertheless
timely under CPLR 203 (d). Defendant’s counterclaim arose out of the same
occurrence upon which a claim asserted in the complaint depended (CPLR 203
[d]). Consequently, his cause of action was not time-barred to the extent of the
demand in the complaint, notwithstanding that it was barred at the time the
claims asserted in the complaint were interposed. Defendant was not entitled
to the benefit of the tolling provisions of CPLR 205 (b), insofar as his
counterclaim had been voluntarily discontinued prior to the dismissal of the
federal action and, thus, was never effectively interposed within the meaning
of section 205 (b).
RESEARCH REFERENCES
By the Publisher’s Editorial Staff
AM JUR 2d, Limitation of Actions §§ 101, 102, 251–255,
261.
CARMODY-WAIT 2d, Limitation of Actions §§ 13:394, 13:418,
13:419, 13:444.
MCKINNEY’S, CPLR 203 (d); 205 (b).