COBLESKILL HEALTHCARE OF MARY IMOGENE BASSETT HOSPITAL v. WADDELL (1997)

Plaintiff has applied ex parte for an order permitting it to file proof of service of the summons and complaint nunc pro tunc as of October 14, 1996.

According to the moving papers, this action to recover for services and materials was commenced by filing a summons and complaint with the Schoharie County Clerk on September 30, 1996.   A copy of the summons and complaint was allegedly served upon defendant on October 14, 1996.   An affidavit of service stating that defendant was served by delivering a copy of the summons and complaint on “Burr & Reid” was filed in the Schoharie County Clerk's office “on or about January 6, 1997”.   Movant states that the affidavit contained a typographical error, to wit:  that the name “Burr & Reid” was inserted instead of “Brian Waddell”.

 Filing an affidavit of service lacking essential information does not constitute compliance with CPLR 306-b(a), so the action against defendant was automatically dismissed on February 7, 1997, for failure to timely file proof of service.   Any other conclusion would permit the statute to be easily circumvented by fraud or artifice.   And, since the action was dismissed prior to this motion, there is no action pending in which nunc pro tunc relief can be granted (Long v. Quinn, 234 A.D.2d 522, 651 N.Y.S.2d 177).   The motion is denied.

HAROLD J. HUGHES, Justice.