Young v. Yager

—Order unanimously affirmed without costs. Memorandum: Plaintiff was injured in an automobile accident on August 2, 1994. He commenced this action by obtaining an order pursuant to CPLR 304 on August 6, 1997 and filing a summons with notice with the court clerk on that same day. Supreme Court properly dismissed the complaint as time-barred. CPLR 304 provides in relevant part that, “[w]here a court finds that circumstances prevent immediate filing, the signing of an order requiring the subsequent filing at a specific time and date not later than five days thereafter shall commence the action.” Contrary to plaintiffs contention, an application pursuant to CPLR 304 to extend the time to file a summons with notice must be made before the Statute of Limitations expires on the action. Here, plaintiff made his application to the court after the three-year Statute of Limitations had expired on his personal injury action (see, CPLR 214 [5]). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.) Present — Lawton, J. P., Hayes, Wisner, Pigott, Jr., and Balio, JJ.