GURNEE v. Allen J. Ball, M.D., Appellant. (1997)

Plaintiffs timely commenced this medical malpractice action by filing a summons and complaint on January 17, 1995.   Plaintiffs were unable to effect personal service because Allen J. Ball, M.D. (defendant), had retired from the practice of medicine and moved from New York.  They obtained an order allowing service upon defendant by publication.   Anticipating that they would be unable to effect service within 120 days following filing of the summons and complaint, plaintiffs commenced a second action before the 120-day period had expired by filing the summons and complaint, paying a second filing fee and obtaining a new index number.

Supreme Court properly denied the motion of defendant to dismiss the second action.   Although plaintiffs commenced the second action before the first action was deemed dismissed (see, CPLR 306-b [a] ), we agree with the court that the premature refiling of the complaint should be treated as a mere irregularity that does not deprive the court of jurisdiction (see, Latin v. Articoli Diamantati Affini, 160 Misc.2d 457, 459, 609 N.Y.S.2d 1013).   To the extent that Alcide v Westchester County Med. Ctr., 234 A.D.2d 239, 651 N.Y.S.2d 327, holds otherwise, we decline to follow it.

We have examined defendant's remaining argument and conclude that it is without merit.

Order unanimously affirmed without costs.

MEMORANDUM: