Livingston v. Wagi

284 A.D.2d 378, 727 N.Y.S.2d 315, 2001 N.Y. App. Div. LEXIS 6073

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated February 15, 2000, which denied her motion, in effect, to restore the action.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is restored.

The plaintiff commenced this action on April 5, 1996, by filing a summons and complaint with the Kings County Clerk, obtaining an index number,, and paying the requisite fee (see, CPLR 306-a [a]). Thereafter, the plaintiff timely served the defendant and filed an affidavit of service with the Kings County Clerk. Due to an error in the index number on the affidavit of service, it was filed incorrectly, and the action was automatically dismissed by the Supreme Court pursuant to CPLR former 306-b (a).

The Supreme Court erred in denying the plaintiff’s motion, in effect, to restore the action since the defendant appeared in the action by service of an answer within 120 days after the filing of the summons and complaint without raising an objection to the defective filing (see, CPLR former 306-b [a]; Matter of Fry v Village of Tarrytown, 89 NY2d 714, 720-721; Tucker v Leak, 268 AD2d 320; Lieber v Sette-Juliano Constr. Corp., 228 AD2d 419, 420; Cerrito v Galioto, 216 AD2d 265). Ritter, J. P., Krausrnan, Florio and Feuerstein, JJ., concur.