Cerrito v. Galioto

216 A.D.2d 265, 627 N.Y.S.2d 767, 1995 N.Y. App. Div. LEXIS 5995

Opinion

In an action to enforce a stipulation, the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), entered April 27, 1994, which denied his motion to dismiss the action on the ground that the plaintiff failed to file proof of service.

Ordered that the order is affirmed, with costs.

According to CPLR 306-b (a), "[i]f proof of service is not filed and there has been no appearance by the defendant within [120 days after the date of filing of the summons and complaint] the action * * * shall be deemed dismissed as to the nonappearing party * * * without prejudice and without costs” (emphasis supplied). In this case, the defendant appeared by the service of an answer (see, CPLR 320 [a]) within 120 days after the filing of the summons and complaint, and this "obviated * * * the need for filing” (1 Weinstein-Korn-Miller, NY Civ Prac 1Í 306-b.01). The defendant’s argument that the court was ousted of its jurisdiction over him solely because of the plaintiffs failure to file proof of service is thus without merit. Rosenblatt, J. P., Ritter, Copertino and Santucci, JJ., concur.