NAM JIN CHUNG v. DELI (1998)

In an action to recover damages, inter alia, for wrongful death, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County, dated October 9, 1997, as granted the motion of the defendants M & S Deli and Mun Taek Oh d/b/a M & S Deli to dismiss the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The complaint was automatically dismissed against the defendants M & S Deli and Mun Taek Oh d/b/a M & S Deli when the plaintiffs failed to file proof of service, and there was no appearance by either defendant within 120 days after the date of filing of the summons and complaint (see, former CPLR 306-b;  Cerrito v. Galioto, 216 A.D.2d 265, 627 N.Y.S.2d 767).   Under the circumstances of this case, we find that the plaintiffs' argument that the defendant M & S Deli appeared in this action is without merit (see, Simkins v. Gruenspan, 118 Misc.2d 107, 109, 459 N.Y.S.2d 955;  cf., Nardi v. Hirsch, 253 A.D.2d 575, 677 N.Y.S.2d 226).

In light of our determination herein, it is unnecessary to reach the appellants' remaining contentions.

MEMORANDUM BY THE COURT.