Glassman v. Schwartz

157 Misc. 2d 175, 602 N.Y.S.2d 502, 1993 N.Y. Misc. LEXIS 387

Opinion

OPINION OF THE COURT

Howard Miller, J.

Motion by plaintiff to consolidate this motion with defendants’ motion returnable October 22, 1993 and to declare service upon defendants Wieder and Schwartz valid. Plaintiffs motion is granted to the extent that the motion returnable October 11, 1993 is consolidated with the motion at bar and otherwise denied. Defendants’ motion to dismiss as to defendants Schwartz and Wieder is granted and otherwise denied.

In the interests of judicial economy, and the exercise of judicial discretion, defendants Wieder and Schwartz’s motion challenging jurisdiction returnable October 22, 1993 is heard in opposition to plaintiffs motion to declare service valid, since defendants’ opposing papers advance no valid reason why the defendants’ motion must be deferred until October 22, 1993.

CPLR 306-b (b) provides that proof of service must be filed within 120 days of filing of the summons and complaint. Plaintiff does not deny that the summons and complaint were filed February 26, 1993, and that the affidavits of the second service upon the defendants Wieder and Schwartz were not filed until August 4, 1993, 159 days later. When the affidavits were not filed within the 120-day period, the action was deemed dismissed and the subsequent untimely filing does not revive the action against those defendants.

The fact that other defendants were timely served does not extend plaintiff’s time to file as to the moving defendants (see, e.g., Arkin, New York’s New Commencement by Filing Law § 7 [3], NY Civ Prac Annual [1992-1993]).