GOMEZ v. Empire City Subway, Inc., Defendant-Appellant. (2008)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 26, 2007, which, insofar as appealed from in this action for personal injuries, denied the motion of defendant Empire City Subway, Inc. (Empire) to dismiss the complaint as against it, and deemed that the proposed amended complaint was served and filed nunc pro tunc to July 19, 2006, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against Empire.   The Clerk is directed to enter judgment accordingly.

 Although the filing of plaintiff's motion for leave to amend the complaint to name Empire as a defendant, along with the proposed amended pleadings, was sufficient to toll the statute of limitations, it was not itself the interposition of the claim within the meaning of CPLR 203(a) (see Perez v. Paramount Communications, 92 N.Y.2d 749, 754-756, 686 N.Y.S.2d 342, 709 N.E.2d 83 [1999] ).   Because plaintiff never served Empire after having received leave of the court to do so, the court never obtained personal jurisdiction over Empire, and thus, it was without power to grant relief nunc pro tunc (see Louden v. Rockefeller Ctr. N., 249 A.D.2d 25, 670 N.Y.S.2d 850 [1998] ), even in the absence of surprise or prejudice to Empire (see Luis v. New York City Hous. Auth., 309 A.D.2d 719, 766 N.Y.S.2d 553 [2003] ).

We have considered plaintiff's remaining contentions and find them unavailing.