Brackett v. St. Mary's Hospital

233 A.D.2d 357, 650 N.Y.S.2d 248, 1996 N.Y. App. Div. LEXIS 11599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1996
• Status: Published

Opinion

In an action to recover damages for wrongful death and conscious pain and suffering, the defendants St. Mary’s Hospital and Mark Leber and the defendant Maurice Dunst separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated July 12, 1995 as granted the plaintiff’s motion to vacate the automatic dismissal of the action.

Ordered, that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the plaintiff’s motion is denied.

The plaintiff admittedly failed to file proof of service within 120 days after the filing of the initial summons and complaint on January 20, 1994 (see, CPLR 306-b [a]). Because the defendants did not appear within that 120-day period, the plaintiff’s action was automatically deemed dismissed as to them as of May 20, 1994 (see, CPLR 306-b [a]; Matter of Barsalow v City of Troy, 208 AD2d 1144; cf., Cerrito v Galioto, 216 AD2d 265).

There is no express statutory authority for the order vacating this automatic dismissal. The plaintiff’s only remedy was to commence a second action (see, Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160).

We have considered the plaintiff’s contentions and find them to be without merit. Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.