Opinion
520921.
05-19-2016
Dealy–Doe–Eyes MADDUX, Appellant, v. Ronald R. SCHUR Jr., Respondent.
Dealy–Doe–Eyes Maddux, St. Johnsville, appellant pro se.
Dealy–Doe–Eyes Maddux, St. Johnsville, appellant pro se.
Before: McCARTHY, J.P., EGAN JR., ROSE, LYNCH and AARONS, JJ.
Opinion
LYNCH, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered July 18, 2014 in Fulton County, which granted defendant's motion to dismiss the complaint.
For more than a decade, plaintiff has pursued an ongoing course of litigation seeking to hold defendant liable for his alleged legal malpractice. One such action for legal malpractice proceeded to trial and was dismissed by Supreme Court upon defendant's motion at the close of plaintiff's proof. Thereafter, defendant moved to dismiss this purported legal malpractice action on the ground that, among other things, plaintiff failed to file a summons or summons with notice. Supreme Court granted defendant's motion, and plaintiff now appeals.
This Court affirmed Supreme Court's subsequent orders denying plaintiff's motions to vacate the order of dismissal (Maddux v. Schur, 83 A.D.3d 1156, 920 N.Y.S.2d 812 [2011] ; Maddux v. Schur, 53 A.D.3d 738, 861 N.Y.S.2d 814 [2008] ).
We affirm. “An action is commenced by filing a summons and complaint or summons with notice in accordance with [CPLR 2102 ]” (CPLR 304[a] ). The failure to file the papers required to commence an action constitutes a nonwaivable, jurisdictional defect (see Matter of Miller v. Waters, 51 A.D.3d 113, 116, 853 N.Y.S.2d 183 [2008] ; Sangiacomo v. County of Albany, 302 A.D.2d 769, 771, 754 N.Y.S.2d 769 [2003] ), and such a defect is not subject to correction under CPLR 2001 (see Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 328, 921 N.Y.S.2d 619, 946 N.E.2d 717 [2011] ; Fox v. City of Utica, 133 A.D.3d 1229, 1230, 18 N.Y.S.3d 918 [2015] ; DeJoy v. Ehmann, 114 A.D.3d 1288, 1289 [2014], lv. denied 23 N.Y.3d 901, 2014 WL 1775803 [2014] ). Here, although plaintiff purchased an index number and filed a complaint, she never filed a summons or summons with notice. Given plaintiff's failure, the purported action was a nullity, and Supreme Court properly dismissed it for want of subject matter jurisdiction (see O'Brien v. Contreras, 126 A.D.3d 958, 958, 6 N.Y.S.3d 273 [2015] ; Sangiacomo v. County of Albany, 302 A.D.2d at 772, 754 N.Y.S.2d 769 ). Moreover, to the extent that the complaint raised claims that were identical to those previously litigated and dismissed after a trial, such claims were barred by principles of res judicata (see Bluff Point Townhouse Owners
Assn., Inc. v. Kapsokefalos, 129 A.D.3d 1267, 1267–1268, 11 N.Y.S.3d 341 [2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457154 [2015] ; Wasson v. Bond, 97 A.D.3d 1093, 1094, 949 N.Y.S.2d 290 [2012] ). Plaintiff's remaining contentions have been examined and found to be without merit.
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR., ROSE and AARONS, JJ., concur.