Cobleskill Healthcare of the Mary Imogene Bassett Hospital v. Waddell

New York Supreme Court

Cobleskill Healthcare of the Mary Imogene Bassett Hospital v. Waddell

171 Misc. 2d 728, 655 N.Y.S.2d 831, 1997 N.Y. Misc. LEXIS 67

DecidedMarch 3, 1997

StatusPublished

This text of 171 Misc. 2d 728 (Cobleskill Healthcare of the Mary Imogene Bassett Hospital v. Waddell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cobleskill Healthcare of the Mary Imogene Bassett Hospital v. Waddell, 171 Misc. 2d 728, 655 N.Y.S.2d 831, 1997 N.Y. Misc. LEXIS 67 (N.Y. Super. Ct. 1997).

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Opinion

OPINION OF THE COURT

Harold J. Hughes, J.

Plaintiff has applied ex parte for an order permitting it to file proof of service of the summons and complaint nunc pro tunc as of October 14, 1996.

According to the moving papers, this action to recover for services and materials was commenced by filing a summons and complaint with the Schoharie County Clerk on September [729]*72930, 1996. A copy of the summons and complaint was allegedly served upon defendant on October 14, 1996. An affidavit of service stating that defendant was served by delivering a copy of the summons and complaint on "Burr & Reid” was filed in the Schoharie County Clerk’s office "on or about January 6, 1997”. Movant states that the affidavit contained a typographical error, to wit: that the name "Burr & Reid” was inserted instead of "Brian Waddell”.

Filing an affidavit of service lacking essential information does not constitute compliance with CPLR 306-b (a), so the action against defendant was automatically dismissed on February 7, 1997, for failure to timely file proof of service. Any other conclusion would permit the statute to be easily circumvented by fraud or artifice. And, since the action was dismissed prior to this motion, there is no action pending in which nunc pro tunc relief can be granted (Long v Quinn, 234 AD2d 520). The motion is denied.

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OPINION OF THE COURT

Harold J. Hughes, J.

Plaintiff has applied ex parte for an order permitting it to file proof of service of the summons and complaint nunc pro tunc as of October 14, 1996.

According to the moving papers, this action to recover for services and materials was commenced by filing a summons and complaint with the Schoharie County Clerk on September [729]*72930, 1996. A copy of the summons and complaint was allegedly served upon defendant on October 14, 1996. An affidavit of service stating that defendant was served by delivering a copy of the summons and complaint on "Burr & Reid” was filed in the Schoharie County Clerk’s office "on or about January 6, 1997”. Movant states that the affidavit contained a typographical error, to wit: that the name "Burr & Reid” was inserted instead of "Brian Waddell”.

Filing an affidavit of service lacking essential information does not constitute compliance with CPLR 306-b (a), so the action against defendant was automatically dismissed on February 7, 1997, for failure to timely file proof of service. Any other conclusion would permit the statute to be easily circumvented by fraud or artifice. And, since the action was dismissed prior to this motion, there is no action pending in which nunc pro tunc relief can be granted (Long v Quinn, 234 AD2d 520). The motion is denied.

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Bluebook (online)

171 Misc. 2d 728, 655 N.Y.S.2d 831, 1997 N.Y. Misc. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobleskill-healthcare-of-the-mary-imogene-bassett-hospital-v-waddell-nysupct-1997.

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