MAUDSLEY MARINO v. NAVAS

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

Lisa K. MAUDSLEY-MARINO, et al., appellants, v. Kevin Drew NAVAS, et al., respondents.

Decided: March 29, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Russo & Galgano, White Plains, N.Y. (Louis J. Galgano III and Maureen W. Shea of counsel), for appellants. McCarl & Harris, Goshen, N.Y. (James P. Harris of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Bellantoni, J.), dated January 20, 1998, which, inter alia, granted the defendants' motion to dismiss the complaint.   The appeal brings up for review so much of an order of the same court, dated July 2, 1998, as, upon reargument, adhered to the original determination (see, CPLR 5517[b] ).

ORDERED that the appeal from the order dated January 20, 1998, is dismissed, as that order was superseded by the order dated July 2, 1998, made upon reargument;  and it is further,

ORDERED that the order dated July 2, 1998, is affirmed insofar as reviewed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The failure of the plaintiffs to file proof of service within 120 days after the filing of their summons and complaint on October 25, 1996, resulted in the automatic dismissal of the action in February 1997 (see, former CPLR 306-b[a];  Kelly v. Delaney, 248 A.D.2d 360, 669 N.Y.S.2d 633;  Midamerica Fed. Sav. Bank v. Gaon, 242 A.D.2d 610, 662 N.Y.S.2d 562;  Srsich v. Newman, 232 A.D.2d 398, 648 N.Y.S.2d 132;  Matter of Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160, 646 N.Y.S.2d 565).   There is no express statutory authority to vacate this automatic dismissal and the plaintiffs' only remedy was to commence a second action (see, Bochen v. Schieffelin & Somerset Co., 242 A.D.2d 314, 661 N.Y.S.2d 982;  Brackett v. St. Mary's Hosp., 233 A.D.2d 357, 650 N.Y.S.2d 248;  Matter of Winston v. Freshwater Wetlands Appeals Bd., supra).   However, although the plaintiffs served the summons and complaint upon the defendants' insurance carrier in March 1997 in accordance with an order of the court made pursuant to CPLR 308(5), they never commenced a second action in accordance with the provisions of CPLR former 306-b(b).   Therefore, the court properly granted the defendants' motion.

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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