Levy v. States Marine Corp.

Walter A. Lynch, J. Defendant States Marine Corporation of Delaware moves under rules 112, 113 and 114 of the "Buies of Civil Practice and subdivision 6 of section 49 of the Civil Practice Act to dismiss the amended complaint herein as to said defendant. The amended complaint alleges a cause of 635 action based upon negligence and a cause of action arising out of breach of warranty of seaworthiness of the vessel. The accident resulting in the injuries for which plaintiff seeks to recover damages is alleged to have occurred on March 7, 1953. The supplemental summons and amended complaint were served upon the defendant States Marine Corporation of Delaware on June 11, 1956, more than three years subsequent to the date of the occurrence of the alleged accident. An action to recover damages for an injury to property, or a personal injury, resulting from negligence must be commenced within three years after the cause of action has accrued (Civ. Prac. Act, § 49, subd. 6). It appears that the defendant, States Marine Corporation of Delaware, is a foreign corporation engaged in interstate and foreign commerce and has maintained an office in the city of New York for the transaction of business for a period exceeding three years immediately preceding the commencement of this action, .with an officer present upon whom service might have been made. A foreign corporation exclusively engaged in interstate or foreign commerce is not required to obtain a certificate to do business within this State (Ruby S. S. Corp. v. American Merchant Marine Ins. Co,, 224 App. Div. 531, affd. 250 N. Y. 573). Plaintiff’s contentions that the defendant States Marine Corporation of Delaware is required to file a certificate of doing business with the Secretary of State and that the Statute of Limitations has been tolled against the moving defendant under the provisions of section 19 of the Civil Practice Act are without merit. Accordingly, the motion is granted to the extent of dismissing the cause of action based on negligence, upon the ground that it was not commenced within the time required by law. The Statute of Limitations has not run as to the cause of action arising from the alleged breach of warranty of seaworthiness (Civ. Prac. Act, § 48, subds. 1, 3). Settle order.