Nadherny v. Eppel

Appellate Division of the Supreme Court of New York

Nadherny v. Eppel

298 A.D.2d 906, 747 N.Y.S.2d 844, 2002 N.Y. App. Div. LEXIS 9054

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2002

StatusPublished

This text of 298 A.D.2d 906 (Nadherny v. Eppel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nadherny v. Eppel, 298 A.D.2d 906, 747 N.Y.S.2d 844, 2002 N.Y. App. Div. LEXIS 9054 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered August 3, 2001, which granted defendant’s motion to dismiss the third amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant’s motion to dismiss the third amended complaint pursuant to CPLR 3211 (a) (8) based upon plaintiff’s failure to file a summons. “[S]ervice of process without first * * * filing the initiatory papers is a nullity, the action * * * never having been properly commenced” (Matter of Gershel v Porr, 89 NY2d 327, 330; see Weichert v Brouse, 288 AD2d 841, lv denied 97 NY2d 608, cert denied — US —, 122 S Ct 2358; Burrell v Countrytowne Apt. Partnership, 247 AD2d 805). Present — Green, J.P., Hayes, Hurlbutt, Gorski and Lawton, JJ.

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—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered August 3, 2001, which granted defendant’s motion to dismiss the third amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted defendant’s motion to dismiss the third amended complaint pursuant to CPLR 3211 (a) (8) based upon plaintiff’s failure to file a summons. “[S]ervice of process without first * * * filing the initiatory papers is a nullity, the action * * * never having been properly commenced” (Matter of Gershel v Porr, 89 NY2d 327, 330; see Weichert v Brouse, 288 AD2d 841, lv denied 97 NY2d 608, cert denied — US —, 122 S Ct 2358; Burrell v Countrytowne Apt. Partnership, 247 AD2d 805). Present — Green, J.P., Hayes, Hurlbutt, Gorski and Lawton, JJ.

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298 A.D.2d 906, 747 N.Y.S.2d 844, 2002 N.Y. App. Div. LEXIS 9054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nadherny-v-eppel-nyappdiv-2002.

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