MARION v. CITY OF NEW YORK (2000)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered December 28, 1998, which, upon reargument, granted defendant New York City Housing Authority's motion to vacate an order of the same court and Justice, entered August 31, 1998, inter alia, dismissing plaintiff's complaint with leave to refile within 30 days, and granted defendants' prior cross motion to dismiss the complaint with prejudice, unanimously modified, on the law, to the extent of denying defendant's cross motion and granting plaintiff leave to recommence her action within the 120-day time-frame set forth in former CPLR 306-b(b), and otherwise affirmed, without costs.

 The timely filing by plaintiff of proof of service upon defendant Housing Authority satisfied the requirements of former CPLR 306-b(a), regardless of the fact that service was later determined to have been effected at a wrong address (Zaleski v. Mlynarkiewicz, 255 A.D.2d 379, 679 N.Y.S.2d 669;  Reyes v. Harris Press & Shear, Inc., 256 A.D.2d 564, 683 N.Y.S.2d 565).   Thus, the automatic dismissal provision of former CPLR 306-b(a) was inapplicable.   Moreover, because former CPLR 306-b contained a saving provision (former CPLR 306-b[b] ) affording plaintiff an additional 120 days to recommence her action, and that additional period had not yet expired as of the date of the appealed order, the motion court erred in holding that a new action against defendant Housing Authority was time-barred.

MEMORANDUM DECISION.