Brown v. Marine Midland Bank

Appellate Division of the Supreme Court of New York

Brown v. Marine Midland Bank

224 A.D.2d 1016, 637 N.Y.S.2d 535, 1996 N.Y. App. Div. LEXIS 1673

Appellate Division of the Supreme Court of the State of New York·Decided February 2, 1996·Published·Cited by 1 cases

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying the cross motion of defendant DiPizio Construction Co., Inc. (DiPizio) to dismiss plaintiffs’ complaint against it. The failure to obtain leave of court to serve a supplemental summons and amended complaint to add DiPizio as an additional defendant constitutes a jurisdictional defect, requiring dismissal of plaintiffs’ action against DiPizio (see, Youngs v Kissing Bridge Ski Corp., 216 AD2d 967; Crook v du Pont de Nemours Co. [appeal No. 2], 181 AD2d 1039, affd 81 NY2d 807; see also, Dauernheim v Lend-lease Cars, 202 AD2d 624).

Nor are plaintiffs entitled to recommence the action pursuant to CPLR 205 (a). Because plaintiffs’ action was not properly commenced in a timely manner, plaintiffs may not take advantage of CPLR 205 (a) (see, Dreger v New York State Thruway Auth., 81 NY2d 721; Parker v Mack, 61 NY2d 114, 117; Markoff v South Nassau Community Hosp., 61 NY2d 283, 287-288). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Complaint.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.

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—Order insofar as appealed from unanimously reversed on the law without costs, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying the cross motion of defendant DiPizio Construction Co., Inc. (DiPizio) to dismiss plaintiffs’ complaint against it. The failure to obtain leave of court to serve a supplemental summons and amended complaint to add DiPizio as an additional defendant constitutes a jurisdictional defect, requiring dismissal of plaintiffs’ action against DiPizio (see, Youngs v Kissing Bridge Ski Corp., 216 AD2d 967; Crook v du Pont de Nemours Co. [appeal No. 2], 181 AD2d 1039, affd 81 NY2d 807; see also, Dauernheim v Lend-lease Cars, 202 AD2d 624).

Nor are plaintiffs entitled to recommence the action pursuant to CPLR 205 (a). Because plaintiffs’ action was not properly commenced in a timely manner, plaintiffs may not take advantage of CPLR 205 (a) (see, Dreger v New York State Thruway Auth., 81 NY2d 721; Parker v Mack, 61 NY2d 114, 117; Markoff v South Nassau Community Hosp., 61 NY2d 283, 287-288). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Complaint.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.

Brown v. Marine Midland Bank, 224 A.D.2d 1016, 637 N.Y.S.2d 535, 1996 N.Y. App. Div. LEXIS 1673 (N.Y. Ct. App. 1996).

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224 A.D.2d 1016 (Brown v. Marine Midland Bank) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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