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Del Gatto, Connors and Valauri Obtain Dismissal on Basis Claims Were Time Barred and Their Inclusion Frivolous

October 18, 2019

Brian Del Gatto (Partner-Stamford), Douglas M. Connors (Partner-Stamford) and Matthew D. Valauri (Associate-Stamford) obtained dismissal of two of five claims asserted against a Canadian insurer and its insured by the plaintiffs in a rear-end auto collision based on the running of the statute of limitations in the New York State Supreme Court, County of Westchester. The plaintiffs included two adults and three minor children. The claims of the children are tolled for the purposes of Statute of Limitations until they reach the age of 18. Brian, Doug and Matthew notified the plaintiffs that the two adult claims were subject to dismissal by virtue of the expiration of the three-year Statute of Limitations pursuant to N.Y. C.P.L.R. § 214(5). The plaintiffs refused to withdraw the expired claims and the Wilson Elser team moved to dismiss them. Defense counsel did not push for costs or fees as it would violate firm policies, but the Court sua sponte and pursuant to 22 NYCRR 130-1.1, determined that “the Court in its discretion may award to any party or attorney … costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys’ fees, resulting from frivolous conduct…” The Court found that the failure of the plaintiffs to amend their Complaint or withdraw the expired claims to be frivolous conduct, which required the Court to “utilize valuable resources” to decide the motion. The Court dismissed the two adult plaintiffs’ injury claims and further granted the defendant attorneys’ fees and costs for preparing the motion. The award of costs and fees, a rare occurrence in litigation, will be a tool to aid in an early resolution of the remaining claims, should the insurer decide not to pursue collection of the award in exchange for an offset against what it might pay to resolve the three infant plaintiffs’ injury claims.

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