TUCKER v. LEAK (2000)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 13, 1998, which denied plaintiff's motion for leave to amend his summons and complaint and to deem them served and filed nunc pro tunc, and to strike the affirmative defense of lack of jurisdiction, and granted defendants' request to dismiss the complaint for failure to effectuate proper service and to comply with the Statute of Limitations, unanimously reversed, on the law, the facts, and in the exercise of discretion, with costs, the complaint reinstated, the motion for leave to amend granted, and the affirmative defense of lack of jurisdiction dismissed.

 It was error for the IAS court to dismiss the complaint.   This action was timely commenced upon the filing of the summons and complaint on September 26, 1996 (CPLR 304, 203[c][1] ).   Service of process on defendant after the Statute of Limitations expired on January 10, 1997 did not render this action time-barred.   The service related back to the filing of the summons and complaint, which was accomplished within the statute of limitations (see, Siegel, New York Practice, Third Edition, § 63, p. 86).   Having timely commenced this action, plaintiff was required to then Ogburn (then alive), and defendant, who was Ogburn's guardian, and file proof of such service within 120 days (CPLR § 306-b).

 Inasmuch as the action was commenced prior to January 1, 1998, the service and filing provisions of the former version of CPLR 306-b govern (Floyd v. Salamon Brothers, 249 A.D.2d 139, 672 N.Y.S.2d 30, lv. denied, 92 N.Y.2d 816, 684 N.Y.S.2d 187, 706 N.E.2d 1211).   This section provides that if proof of service is not filed and there has been no appearance by the defendant within the time provided in the section for filing, the action is deemed dismissed as to the non-appearing party (CPLR § 306-b[a] ).   While plaintiff successfully completed service and filing of proof as to Ogburn, filing of proof of service upon defendant was beyond 120 days.   However, this failure is not fatal since Ms. Ogburn, through her guardian, made an appearance by serving an answer within 120 days of the commencement of the action (CPLR 306-b[a];  Nardi v. Hirsh, 250 A.D.2d 361, 672 N.Y.S.2d 334).   Therefore, service of the answer obviated the need for filing of proof of service.

MEMORANDUM DECISION.