Opinion
September 28, 1970
In an assault action to recover damages, the appeal is from an order of the Supreme Court, Queens County, dated May 1, 1970, which denied plaintiff's motion to strike defendant's affirmative defense of the Statute of Limitations and granted defendant summary judgment. Order reversed, with $10 costs and disbursements, and plaintiff's motion granted. On June 5, 1969 appellant commenced a prior action, in the Civil Court of the City of New York, Queens County, arising out of the assault in question. Appellant was allegedly assaulted on July 16, 1968 in Suffolk County by respondent, a Suffolk County resident. The complaint was dismissed because the Civil Court lacked jurisdiction over an assault committed outside its territorial boundary by a nonresident of the City of New York. Appellant then commenced the instant action in Supreme Court, Queens County, on December 15, 1969. Respondent raised the defense of the Statute of Limitations, one year having elapsed since the cause of action accrued. Appellant moved to strike that defense on the ground that CPLR 205 (subd. [a]) permitted him to bring this second action within six months after termination of the prior action. The motion was denied, on the ground that appellant was not entitled to the six-month extension under CPLR 205 (subd. [a]) because the first action was dismissed for lack of personal jurisdiction of respondent, i.e., that that action had never commenced. In our opinion, appellant was entitled to bring this action within the statutory six-month period. For the purposes of CPLR 205 (subd. [a]), appellant's first action had commenced, because dismissal of that action was based upon lack of jurisdiction over respondent ( Gains v. City of New York, 215 N.Y. 533). There had been a mistake in the choice of forum. A defect of this nature is to be distinguished from a failure to achieve service of process upon the defendant. It is in the latter case that the action is deemed never to have commenced, thus preventing the application of CPLR 205 (subd. [a]) ( Erickson v. Macy, 236 N.Y. 412). Christ, P.J., Rabin, Munder, Martuscello and Latham, JJ., concur.