Yarusso v. Arbotowicz

Antonio Yarusso (plaintiff) and Stanley Arbotowicz (defendant) were involved in a car accident in November 1968 in New York. Arbotowicz resided in New York at the time of the accident but moved to Florida in November 1970, where he resided until February 1972. Arbotowicz moved back to New York in January 1974. Yarusso wished to sue Arbotowicz regarding the accident. Accordingly, pursuant to the New York Vehicle and Traffic Law (Vehicle Law), in September 1971, Yarusso served a summons and complaint on the New York secretary of state and mailed copies to Arbotowicz’s houseboat. However, Arbotowicz had moved from the houseboat to an apartment several months earlier, and the summons and complaint were returned to Yarusso with a note that Arbotowicz had moved with no known address. Yarusso tried to serve Arbotowicz again in November 1971. After serving the secretary of state, Yarusso mailed the summons and complaint to an address on 41st Street in Miami; however, that mail too was returned to Yarusso because Arbotowicz actually lived on 43rd street in Miami. In May 1974, Yarusso moved for a default judgment based on Arbotowicz’s failure to respond to the summonses and complaints purportedly served on Arbotowicz in 1971. Arbotowicz cross-moved to dismiss the suit for lack of personal jurisdiction due to the lack of service. The court granted Arbotowicz’s motion to dismiss. In July 1974, while the parties’ dueling motions were pending, Yarusso personally served Arbotowicz with a summons and complaint for a new suit based on the 1968 accident. Arbotowicz moved for summary judgment on the ground that this second suit was time-barred. Yarusso responded that the statute of limitations did not expire because it was tolled pursuant to Civil Practice Law and Rules (CPLR) § 207. The supreme court denied Arbotowicz’s motion, and the appellate division affirmed. Arbotowicz appealed.