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This entry was published on 2014-09-22
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SECTION 216
Abbreviation of period to one year after notice
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 2
§ 216. Abbreviation of period to one year after notice. (a) Action to
recover money. 1. No action for the recovery of any sum of money due and
payable under or on account of a contract, or for any part thereof,
shall be commenced by any person who has made claim to the sum, after
the expiration of one year from the giving of notice, as hereinafter
provided, to the claimant that an action commenced by another person is
pending to recover the sum, or any part thereof, exceeding fifty dollars
in amount. This limitation shall not be construed to enlarge the time
within which the cause of action of the claimant would otherwise be
barred.

2. If any person shall make claim for the recovery of any sum of money
due and payable under or on account of a contract, and an action has
theretofore been, or shall thereafter be, commenced by another person to
recover the sum, or any part thereof, exceeding fifty dollars in amount,
the defendant in such action may, within twenty days from the date of
service upon him of the complaint or from the date of receipt by him of
the claim, whichever occurs later, make a motion before the court in
which the action is pending for an order permitting the defendant to
give notice to the claimant that the action is pending. The court in
which the action is pending shall grant the order where it appears that
a person not a party to the action has made claim against the defendant
for the sum of money, or any part thereof, exceeding fifty dollars in
amount; that the action was brought without collusion between the
defendant and the plaintiff; and that the claimant cannot, with due
diligence, be served with process in such a manner as to obtain
jurisdiction over his person. The order shall provide, among such other
terms and conditions as justice may require, that notice shall be given
to the claimant by sending by registered mail a copy of the summons and
complaint in the action and the order and a notice addressed to the
claimant at his last known address. In the event that registration of
mail directed to any country or part thereof shall be discontinued or
suspended, notice to a claimant whose last known address is within such
country or part thereof shall be given by ordinary mail, under such
terms and conditions as the court may direct. Proof that the notice has
been mailed shall be filed within ten days from the date of the order;
otherwise the order becomes inoperative. Upon such filing, notice shall
be deemed to have been given on the tenth day after the date of such
order.

3. Upon proof by affidavit or otherwise, to the satisfaction of the
court, that the conditions of this subdivision have been satisfied and
that there is no collusion between the claimant and the defendant, the
court shall make an order staying further prosecution of the action for
a period not to exceed one year from the date when the notice shall have
been given to the claimant. At the time of the granting of such order or
at any time thereafter, the court, upon the motion of any party, shall,
as a condition of the granting of the order or its continuation, impose
upon the defendant such terms as justice may require as to the
furnishing of an undertaking in an amount to be fixed by the court. The
stay shall be vacated and the undertaking, if any has been given, may be
discharged or modified, as justice may require, upon proof to the court
by any party to the action that the claimant has intervened or has
instituted another action in any court of this state to recover the said
sum of money, or any part thereof, exceeding fifty dollars.

4. A motion for any relief as prescribed in this subdivision shall be
made on notice to all other parties to the action.

5. Whenever claims are made by two or more persons, each claiming to
be, to the exclusion of the other, the duly authorized deputy, officer
or agent to demand, receive, collect, sue for or recover the same sum of
money due and payable under or on account of a contract, or any part
thereof, exceeding fifty dollars in amount, for and on behalf of the
same person, each person making such a claim shall be deemed an adverse
claimant. Notwithstanding that an action has been commenced in the name
of or on behalf of the person for whom he claims to be the duly
authorized deputy, officer or agent, any such adverse claimant may be
notified of the pendency of an action as provided in this subdivision
and may intervene in the action and be designated as claiming to be or
as the alleged deputy, officer or agent.

6. Whenever an action has been commenced for the recovery of any sum
of money exceeding fifty dollars due and payable under or on account of
a contract and the records of the defendant show that a person other
than the plaintiff has the right, exclusive of other deputies, officers
or agents of the plaintiff, to demand, sue for and recover the same sum
of money, or any part thereof, exceeding fifty dollars in amount, either
in his own name, on his own behalf, or as the authorized deputy, officer
or agent for the plaintiff, and the defendant has received no notice of
transfer, revocation, or other change in right or authority acceptable
to it, the person so appearing on the records shall be deemed to have
made an adverse claim to the sum of money and may be treated as an
adverse claimant.

(b) Action to recover property. When an action has been commenced to
recover specific personal property, including certificates of stocks,
bonds, notes or other securities or obligations, exceeding fifty dollars
in value, held by the defendant within the state, or to enforce a vested
or contingent interest or lien upon such property, and a person not a
party to the action asserts a claim to the whole or any part of the same
property or to a right, interest or lien upon it which is adverse to the
plaintiff's claim, and the court in which the action is pending has no
jurisdiction over the adverse claimant to direct the issuance of process
or if the same be issued it would be without effect notwithstanding that
the action seeks to have declared, enforced, regulated, defined or
limited, rights, interests or liens upon specific personal property
within the state, the defendant in the action may within twenty days
from the date of service upon him of the complaint or within twenty days
of the date of the receipt by him of the adverse claim, whichever shall
occur later, make a motion before the court for leave to give notice to
the adverse claimant of the pending action in the same manner as
provided in subdivision (a). Upon the granting of such an order, the
provisions of subdivision (a) shall apply insofar as they are compatible
with the subject matter of the action.