Defendants Briggs submits a motion to dismiss Summons and Complaint of Plaintiff Resch as untimely filed pursuant to the statute of limitations.

Plaintiff Resch submits opposition and submits a cross motion to dismiss said defendant's motion.

Defendants submit Reply to their motion to dismiss and opposition to plaintiff's cross motion.

Plaintiff then files a petition under Article 78 seeking an Order from this Court for the Sullivan County Clerk (Respondent Cooke) to date stamp plaintiff's Summons and Complaint as timely filed.

Respondent Cooke, by his attorney Sullivan County Attorney, submits Verified Answer.

Defendants Briggs submit Reply.

Following full submissions, this Court held a fact finding hearing.

Subsequent to said fact finding hearing, plaintiff submitted statement of facts, defendants Briggs submitted a memorandum of law and respondent Cooke submitted a memorandum of law.

STATEMENT OF FACTS

This Court finds the following facts based upon uncontroverted submissions and credible evidence produced upon the fact finding hearing.

This matter arises out of a two car motor vehicle accident on April 18, 2003 in the County of Sullivan whereupon a collision occurred between the plaintiff Resch and the defendants Briggs.

Attorney for plaintiff Resch mistakenly filed a Summons and Complaint with the Sullivan County Court Clerk by overnight mail which was recieved on April 12, 2006.

The Sullivan County Court Clerk is a Deputy County Clerk for purposes of filing [*2]criminal actions as well as Article 78 and habeas corpus actions emanating from the two state prisons in Sullivan County and the Sullivan County Jail .

The Sullivan County Court Clerk (Court Clerk) is not authorized to accept for filing a Summons and Complaint nor does the Court Clerk assign Index numbers.

Upon receipt of plaintiff's Summons and Complaint on April 12, 2006, the Sullivan County Court Clerk forwarded same to the Sullivan County Clerk (County Clerk) by Inter-Office Mail.

Inter-Office Mail is picked up by the mail room of the Sullivan County Government Center, where the County Clerk is located, twice a day. Said mail is thereupon delivered to the proper office in the Sullivan County Government Center the same day or, at the latest, the next day.

April 12, 2006 was a Wednesday and said Summons and Complaint was delivered to the County Clerk on Thursday, April 13, 2006 or Friday, April 14, 2006.

Testimony by the County Clerk shows that the affixing of the County Clerk's time stamp upon filed paperwork was delayed by two or three days.

The County Clerk's time stamp upon the Summons and Complaint herein was April 19, 2006.

The three year statute of limitations applicable herein ends on April 18, 2006.

ISSUE

Does the Sullivan County Clerk's time stamp of April 19, 2006 serve as the date plaintiff filed the Summon and Complaint, thus precluding a lawsuit as being one day past the applicable statue of limitations, or does the Sullivan County Clerk's receipt of the Summons and Complaint prior to the sunset date for filing, April 18, 2006, allow the law suit to be commenced?

LAW

An action is commenced by filing a Summons and Complaint with the clerk of the court in the county in which the action is brought whereupon a date stamp shall be affixed and an Index number assigned. CPLR §304.

It was the intent of the legislature "to treat litigation papers as "filed" within the meaning of CPLR 304 only upon the receipt of those papers by the court clerk or the court's designee. Matter of Grant v Senkowski, 95 NY2d 605 (2001).

The proper place to file a Summons and Complaint to commence an action is the office of the County Clerk as he is the clerk of the court. Ponds v Dehm, 98 NY2d 745 (2002). [*3]

Satisfaction of CPLR 304, and the statute of limitations, occurs upon the Summons and Complaint being physically delivered to the County Clerk not necessarily by the dated stamped thereon.

Peace v Zhang, 15 Ad3d 956 (4th Dept., 2005).

FINDING

This Court finds that plaintiff has satisfied CPLR 304 because the Sullivan County Clerk was in physical possession of the Summons and Complaint on or about April 14, 2006 and the litigation is timely as the statute of limitations does not end until April 18, 2006.

Based upon the above, it is

ORDERED, that defendant's motion to dismiss the Summons and Complaint is denied, and it is further

ORDERED, that plaintiff's cross motion to dismiss defendant's motion to dismiss is granted, and it is further

ORDERED, that plaintiff's Article 78 petition is granted, and it is further

ORDERED, that the Sullivan County Clerk shall time stamp the Summons and Complaint and all papers filed herein and shall is issue an Index number herein as of April 14, 2006.

This shall constitute the Decision and Order of this Court.

DATED: February 5, 2007

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Acting Supreme Court Justice