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Supreme Court, Appellate Division, Fourth Department, New York.

Robert P. SCHOEMANN, Plaintiff-Respondent, v. Bertha ADAMS and Audrey Adams, Defendants-Appellants.

Decided: April 28, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, SMITH, GREEN, AND PINE, JJ. O'Neill, Cantwell, Feeley & Brownell, Buffalo (Michael T. Feeley Of Counsel), for Defendants-Appellants. Kenney, Shelton, Liptak & Nowak, L.L.P., Buffalo (Christopher A. Johnson of Counsel), for Plaintiff-Respondent.

On January 24, 1997, plaintiff commenced an action against defendants seeking damages for injuries he allegedly sustained while on defendants' property on February 24, 1994 by filing a summons with notice.   It is undisputed that, because no affidavit of service was filed and defendants did not appear in the action within 120 days, the action was “deemed dismissed” as of May 24, 1997 (CPLR former 306-b [a] ).   Pursuant to CPLR former 306-b (b), plaintiff had 120 days after the dismissal in which to commence a new action, despite the expiration of the statute of limitations after the first action was commenced but before it was dismissed.   On June 26, 1997, plaintiff filed a complaint and a second summons in the County Clerk's office.   The second summons bore the same index number as the one that appeared on the summons with notice in the first action.

Defendants moved to dismiss the second action, contending that plaintiff had failed “to properly commence an action within the three (3) year statute of limitations” inasmuch as plaintiff had failed “to purchase a new index number and file new initiatory papers under a new index number prior to the expiration of the statute of limitations ․ or within 120 days after the [first action was deemed dismissed].”   Supreme Court properly denied defendants' motion.   Plaintiff established that he paid the requisite filing fee and secured “an index number” for the new action (Matter of Gershel v. Porr, 89 N.Y.2d 327, 331, 653 N.Y.S.2d 82, 675 N.E.2d 836;  see Chiacchia & Fleming v. Guerra, 309 A.D.2d 1213, 1214, 765 N.Y.S.2d 134, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36;  cf. Matter of AHEPA 91 v. Town of Lancaster, 258 A.D.2d 968, 685 N.Y.S.2d 510).   Defendants failed to preserve for our review their present contention that the receipt submitted by plaintiff to prove that he paid the second filing fee constitutes inadmissible hearsay (see generally Monroe v. Lozner, 267 A.D.2d 966, 966-967, 701 N.Y.S.2d 679).   We thus conclude that, although the index number given to plaintiff by the County Clerk's office was not a “new” index number (Harris v. Niagara Falls Bd. of Educ., 6 N.Y.3d 155, 811 N.Y.S.2d 299, 844 N.E.2d 753), plaintiff complied with the “absolute necessity of purchasing an index number to commence [the] action” (Chiacchia & Fleming, 309 A.D.2d at 1214, 765 N.Y.S.2d 134).   Contrary to defendants' contention, the fact that the County Clerk's office assigned the same index number as that used in the original action does not invalidate the commencement of this action.   Because this action was timely commenced, defendants' motion to dismiss was properly denied.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.