Salvatore A. Manno and Patricia Manno v. 1023 38 th Street Realty LLC, Alnour Associates, Consulting Engineering, P.C., Silvercup Scaffolding 1 LLC and US Demco of Brooklyn, Inc.
Plaintiffs Salvatore A. Manno and Patricia Manno claimed property damage to their building located at 1021 38 th Street, Brooklyn, New York as a result of construction and demolition work ongoing at the adjacent property of 1023 38 th Street, Brooklyn, New York. Our client, Silvercup Scaffolding 1 LLC, installed the scaffolding and sidewalk shed placed at the alleged construction location.
Prior to the completion of significant discovery, Nicholas V. Ferrara moved to dismiss plaintiff’s claims pursuant to CPLR §3211(a)(5) as plaintiff failed to file an accurate and acceptable summons and verified complaint within the statute of limitations (three years) from the alleged date of loss. Plaintiffs’ complaint alleged the date of property damage was June 3, 2010 and the first complaint served was dated May 26, 2015. Plaintiffs submitted in opposition that the date was a typographical error and should have read June 3, 2012. However, we were able to argue in reply that even if plaintiff’s “new” date of loss was in fact correct, plaintiffs’ initially filed May 26, 2015 complaint was defective as it was not accompanied by a summons.
Due to plaintiffs’ failure to file a summons with their original May 26, 2015 complaint, the Court found that the plaintiff’s filing of an amended summons and complaint on September 16, 2015, was the first summons filed with the Court. Therefore, the Court subsequently dismissed plaintiffs’ complaint with prejudice for their failure to file their complaint within the statute of limitations.