Brady v. Rudin Management Co.

Breitel, J. P. (concurring).

I concur in the result recommended by Mr. Justice McÍSTallt.

The fine opinions in this case demonstrate forcefully that a plausible rationale can be formulated to justify the application of either the shorter three-year Statute of Limitations or the longer six-year Statute of Limitations. This consequence, I believe, is the product of understandable legislative inadvertence in an area crisscrossed by problems and purposes other than arranging time limitations in actions.

The staleness of plaintiff’s action lends practical support and temptation to applying the shorter Statute of Limitations. Plaintiff started this action in 1959 for an alleged accident that occurred on April 11, 1954. Realistically, it is an action based on negligence and suffers from the same risks of staleness, regardless of whether the cause of action is created” or merely extended ” by statute. But, on the other hand, the very harshness of barring plaintiff from judicial remedy would seem to merit clearer legislative direction before that should happen. This is especially indicated since there are such variant cases in applying Statutes of Limitations to statute ‘1 created ’ ’ or ' ‘ extended ’ ’ liabilities.

Hence, albeit with great doubt as to its correctness in policy, and with no doubt that the available precedents are not controlling either way, I vote in favor of affirmance and of applying the longer Statute of Limitations.