Kearns v. Moyer

Order unanimously reversed, without costs, and motion denied. Memorandum: This appeal from an order dismissing the complaint seeking damages for assault on the ground that the action had not been commenced within the applicable one-year limitations period (CPLR 215, subd 3) was previously before our court. We held the appeal and remitted (Kearns v Moyer, 78 AD2d 979) for a determination of whether, as claimed, plaintiff’s attorney mailed the summons to the Sheriff on September 15,1977, thus commencing the action within one year of the accrual of the cause of action on September 15, 1976 (see General Construction Law, § 20; CPLR 203, subd [b], par 5; Sanford v Garvey, 81 AD2d 748; Kearns v Moyer, supra). At a short hearing on remittitur, plaintiff’s attorney testified that he had mailed the summons on September 15, 1977. There was no proof to the contrary and Special Term found that the summons was mailed on that date. Accordingly, we reverse the order dismissing the complaint and reinstate the complaint. (Resubmission of appeal from order, Supreme Court, Jefferson County, Inglehart, J. — dismiss complaint.) Present — Simons, J. P., Hancock, Jr., Callahan, Denman and Moule, JJ.