Moog, Inc. v. Town of Elma

Full title: In the Matter of MOOG, INC., Respondent, v. TOWN OF ELMA et al., Appellants

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 13, 1998

248 A.D.2d 953 (N.Y. App. Div. 1998)

670 N.Y.S.2d 132

Opinion

March 13, 1998

Appeal from Order of Supreme Court, Erie County, Whelan, J. — RPTL.

Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.

Order insofar as appealed from unanimously reversed on the law without costs, leave to recommence proceeding denied, motion granted and recommenced proceeding dismissed. Memorandum: In this tax certiorari proceeding, respondents appeal from an order that granted respondents' motion to dismiss the original proceeding but granted petitioner leave to recommence the proceeding pursuant to CPLR former 306-b (b) and denied respondents' motion to dismiss the recommenced proceeding. That part of the order dismissing the original proceeding "was superfluous" (Matter of Barsalow v. City of Troy, 208 A.D.2d 1144, 1146). Because petitioner failed to file timely proof of service in accordance with CPLR former 306-b (a), the dismissal was automatic and self-executing. In addition, because the original proceeding was "deemed dismissed" by operation of statute (ibid.), Supreme Court erred in granting petitioner leave to recommence the proceeding (see, Bochen v. Schieffelin Somerset Co., 242 A.D.2d 408, lv dismissed 91 N.Y.2d 866; Long v. Quinn, 234 A.D.2d 520, 521-522).