WILLIAMSON v. Edward Carroll, appellant.

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

Cheryl WILLIAMSON, plaintiff-respondent, v. Patricia EDWARDS, et al., defendants-respondents, Edward Carroll, appellant.

Decided: May 24, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, ANITA R. FLORIO, JJ. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, N.Y. (Norman H. Dachs and Jonathan Dachs of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant Edward Carroll appeals from (1) an order of the Supreme Court, Kings County (Barasch, J.), dated November 20, 1997, which denied his motion to dismiss the complaint insofar as asserted against him for failure to comply with CPLR 306-b(a) and 306-b(b), and (2) an order of the same court, dated April 9, 1998, which denied his motion to reargue his prior motion and for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the appeal from so much of the order dated April 9, 1998, as denied that branch of the appellant's motion which was for reargument is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated November 20, 1997, is reversed, on the law, and the motion to dismiss the complaint insofar as asserted against the appellant is granted;  and it is further,

ORDERED that the appeal from so much of the order dated April 9, 1998, as denied that branch of the appellant's motion which was for summary judgment is dismissed as academic in light of our disposition of the appeal from the order dated November 20, 1997;  and it is further,

ORDERED that the appellant is awarded one bill of costs.

The plaintiff's complaint, insofar as it is asserted against the appellant, was subject to an automatic and self-executing dismissal on July 29, 1995, that is, 120 days following the commencement of the action by filing on March 31, 1995, due to the plaintiff's failure to file proof of service within that time (see, CPLR [former] 306-b[a];  Matter of Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836;  Connor v. Deas, 255 A.D.2d 287, 679 N.Y.S.2d 321;  Brackett v. St. Mary's Hosp., 233 A.D.2d 357, 650 N.Y.S.2d 248).

We note that there is no proof that the cross claim asserted by the defendants Patrick Edwards and Rolando Edwards was properly served on the appellant prior to dismissal.

MEMORANDUM BY THE COURT.

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