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Tamburo v. P&C Food Markets

New York Supreme Court, Appellate Division
36 A.D.2d 1017, 321 N.Y.S.2d 487 (1971)

Written by Steven Pacht, JD

Facts

Carmela Tamburo (plaintiff) allegedly was injured while on the premises of P&C Food Markets, Inc. (P&C) (defendant). On April 29, 1969, the last day before the expiration of the statute of limitations for a negligence claim, Tamburo delivered a summons to the county sheriff for the sheriff to serve on P&C. However, the caption on the summons did not identify the court and county in which Tamburo was bringing suit, as required by Civil Practice Law and Rules (CPLR) § 2101. The sheriff served the summons on P&C on April 29. P&C did not enter an appearance in response to the summons. On June 19, Tamburo delivered a supplemental summons to the sheriff for service on P&C, which the sheriff served on P&C the next day. The supplemental summons specified the court and county. In its answer to the complaint, P&C raised the statute of limitations as an affirmative defense; P&C subsequently moved to dismiss the complaint pursuant to CPLR § 3211 based on the statute of limitations. Tamburo opposed the motion and cross-moved for an order to amend the caption nunc pro tunc as of April 29 to include the court name and county. The supreme court denied P&C’s motion and granted Tamburo’s motion. P&C appealed.

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