Interstate System, Inc. v. Bev Pac, Inc.

This motion by the defendants under CPLR 3211 (subd. [a], par. 5) to dismiss the summons and complaint for being barred by the Statute of Limitations raises the question when is the summons “ delivered ” for service to the Sheriff (CPLR 203, subd. [b], par. 5), the day it was postmarked or the day the Sheriff received it.

The cause of action accrued on December 19, 1970 and had to be commenced within three years, with a 60-day extension were the summons delivered within the three-year period to the *130■Sheriff for service. The Sheriff received the summons and complaint on December 21, 1973 but…