Black v. Randall Medical Offices

237 A.D.2d 110, 654 N.Y.S.2d 364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1997
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Stanley Green, J.), entered August 28, 1995, which, in an action for personal injuries and wrongful death based upon defendants’ alleged medical malpractice, granted the individual defendants’ motions to dismiss the action as against them for failure to timely file proof of service, unanimously dismissed, without costs, as academic. Order, Supreme Court, Bronx County (Anne Tar-gum, J.), entered June 12, 1996, which deemed the instant recommenced action to have been previously dismissed automatically, and denied defendants’ motions to dismiss it as academic, unanimously affirmed, without costs.

Since CPLR 306-b (a) is self-executing, the order of August 28, 1995, which dismissed plaintiffs action against the individual defendants for failure to timely file proof of service, was superfluous (see, Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146). The action had been automatically dismissed already on February 21, 1995, 120 days after the summons and complaint were filed, at which time the 120-day period in CPLR 306-b (b) for commencing a new action began to run. Since that new action was not commenced until October 1995, it too was untimely, and was properly deemed already dismissed automatically in the order of June 12, 1996 (see, supra; Long v Quinn, 234 AD2d 522). Concur—Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.