Connor v. Deas

255 A.D.2d 287, 679 N.Y.S.2d 321, 1998 N.Y. App. Div. LEXIS 11555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1998
• Status: Published

Opinion

—In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated June 3, 1997, which denied her motion for judgment in her favor upon the defendant’s failure to appear or answer, and granted the defendant’s cross motion to dismiss the action.

Ordered that the order is affirmed, with costs.

The Supreme Court properly concluded that the dismissal of the plaintiffs action for failure to timely file proof of service pursuant to CPLR former 306-b (a) was automatic and self-executing (see, Dolson v DiPietro, 251 AD2d 535; Long v Quinn, 234 AD2d 520; Brackett v St. Mary’s Hosp., 233 AD2d 357), and that nunc pro tunc relief was not available (see, Kelly v Delaney, 248 AD2d 360; Long v Quinn, supra, at 521-522). Contrary to the plaintiffs contention, there is no basis for retroactive application of the new CPLR 306-b (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 52; Floyd v Salamon Bros., 249 AD2d 139). Rosenblatt, J. P., Copertino, Sullivan and Altman, JJ., concur.