Opinion
February 15, 1965
In a negligence action to recover damages for personal injury, plaintiff appeals: (1) from an order of the Supreme Court, Kings County, dated September 21, 1962, which granted the defendant's motion to set aside the service of process and dismiss the action on the ground that the court lacked jurisdiction over its person and over the subject matter of the action; and (2) from the judgment of dismissal entered on said date. Order affirmed, without costs. Appeal from judgment dismissed, without costs. The record as submitted does not contain any judgment. This action was instituted more than a year after the accident occurred and was therefor not timely brought (L. 1950, ch. 301, § 7; Trippe v. Port of N.Y. Auth., 14 N.Y.2d 119). The fact that a prior action instituted by the plaintiff in a Federal court was dismissed on the plaintiff's own motion, for lack of diversity jurisdiction, within less than one year prior to the commencement of the second action, did not render applicable the saving provisions of section 23 of the former Civil Practice Act (cf. Schwertfeger v. Scandinavian American Line, 186 App. Div. 89, affd. on opinion below 226 N.Y. 696; Kaplan v. Uribe, 286 App. Div. 156; Matter of Keep, 241 App. Div. 556, affd. sub nom. Matter of Keep v. City of Lockport, 266 N.Y. 583; McDonough v. Cestare, 3 A.D.2d 201, 202; Rao v. Port of New York Auth., 122 F. Supp. 595, affd. 222 F.2d 362). Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.