Ask any practicing lawyer in New York how to timely commence an action or initiate a proceeding and, invariably, the response will be “by filing a summons or petition, within the statute of limitations period, of course.” Ask whether filing on the very last day of the statute of limitations renders the action untimely, the response would undoubtedly be “no.” That lawyer would be correct on both counts, most of the time.If you asked whether the summons or petition needed to be served within the limitations period to be commenced timely, the lawyer would likely answer, “no, service is to acquire jurisdiction over the party.” Again, that lawyer would be correct, most of the time.
This article discusses an anomaly in New York law, a judicially created requirement for service, as well as filing, of a petition under Election Law §16-102, within the statutory limitations period for the proceeding to be timely “instituted.” That requirement was recently cemented as law by the Court of Appeals’ denial of leave to appeal in Matter of Andrew DeStefano v. James Borkowski, 29 N.Y.3d 915 (2017).
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