polyphoniac
New Member
Last year I was sued in New York State Supreme Court by a paper buyer who claimed to have bought a charged-off credit card debt that had my name on it. As the affidavit of service alleged service on a person who obviously did not exist, I moved for dismissal on lack-of-service grounds. On April 7, 2008, my motion was granted in a traverse hearing and the suit was dismissed. Upon leaving the courtroom, and just outside the courtroom door, I was immediately served with a summons and complaint in a new action for the same cause, but this action had been commenced on April 1. In other words, for six days the same plaintiff had two actions going against the same defendant for the same cause of action. It appears that the plaintiff's intent was to circumvent the statute of limitations, as the alleged debt had aged beyond it as of April 5, and the saving provision of CPLR § 205 (a) is not available for an action terminated for "failure to obtain personal jurisdiction over the defendant" (as the earlier action was).
I would like to move again for dismissal. Someone told me that what I have described above is a highly unusual maneuver but one that most courts would regard as a "sharp practice" and not condone. Unfortunately, I am not finding anything in the CPRL that would expressly bar such behavior. I would be grateful for any tips that might help me draft a cogent argument that I could use in my motion papers.
Thanks.
I would like to move again for dismissal. Someone told me that what I have described above is a highly unusual maneuver but one that most courts would regard as a "sharp practice" and not condone. Unfortunately, I am not finding anything in the CPRL that would expressly bar such behavior. I would be grateful for any tips that might help me draft a cogent argument that I could use in my motion papers.
Thanks.
