## Facts

- Antonio P. Yarusso sought damages for personal injuries arising from a Nassau County automobile accident on November 24, 1968.
- Stanley Arbotowicz, a New York resident at the time of the accident, left New York in November 1970 and lived in Florida until returning to New York in January 1974 (with only a brief visit in February 1972).
- Yarusso attempted in 1971 to obtain jurisdiction under the nonresident motorist service provisions, VTL §§ 253–254, by serving the Secretary of State and mailing copies to Arbotowicz.
- The first 1971 mailing was sent to a Florida marina where Arbotowicz no longer lived and was returned as undeliverable.
- The second 1971 mailing used an incorrect Florida street address and was returned as “addressee unknown.”
- In May 1974, Yarusso sought a default judgment based on the 1971 efforts; Arbotowicz cross-moved to dismiss for lack of personal jurisdiction, and the first action was dismissed.
- In July 1974, Yarusso personally served Arbotowicz in New York with a new summons and complaint based on the same accident.
- Arbotowicz moved for summary judgment in the second action, asserting the three-year personal injury statute of limitations had expired; Yarusso argued the period was tolled during Arbotowicz’s absence under CPLR 207.

## Issues

1. Whether CPLR 207 tolls the statute of limitations during a defendant’s out-of-state absence when a statute (VTL §§ 253–254) authorizes obtaining personal jurisdiction without personal in-state delivery.
2. Whether unsuccessful and legally ineffective service attempts under VTL §§ 253–254 nonetheless stop or interrupt the running of the statute of limitations.

## Decision

- The Court of Appeals reversed the Appellate Division and granted summary judgment to Arbotowicz.
- The court held the statute of limitations was not tolled by Arbotowicz’s absence because VTL §§ 253–254 provided a legally available method to obtain jurisdiction without in-state personal delivery.
- The court held the 1971 uncompleted/defective VTL service attempts did not stop the limitations period.
- The second action, commenced by personal service in July 1974, was time-barred.

## Legal Principles

- CPLR 207’s absence toll does not apply when personal jurisdiction “can be obtained” without personal delivery within New York, including through statutory substitute or out-of-state service such as VTL §§ 253–254.
- The CPLR 207 exception turns on the legal availability of an alternative jurisdictional method, not on the plaintiff’s success in effecting service by that method.
- Defective or uncompleted substitute service that fails to confer personal jurisdiction does not interrupt or toll the statute of limitations.

## Conclusion

Because New York law provided an available statutory means to obtain personal jurisdiction over the absent defendant, CPLR 207 did not toll the three-year limitations period, and the plaintiff’s failed substitute-service efforts did not stop the running of time; the later personally served action was therefore dismissed as untimely.


Yarusso v. Arbotowicz, 41 N.Y.2d 516 (N.Y. 1977)