Opinion
Submitted December 15, 1999
January 31, 2000
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated January 12, 1999, as granted the defendant's motion to reargue that branch of his prior motion which was to dismiss the complaint for failure to file a timely proof of service and, upon reargument, denied that branch of the motion as academic.
Davidson Kran, New York, N.Y. (Alexander Kran of counsel), for appellant.
Keller, O'Reilly Watson, P.C., Woodbury, N.Y. (Jessica L. Darrow of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly concluded that the plaintiff failed to timely file proof of service pursuant to former CPLR 306-b(a). Consequently, the dismissal of the plaintiff's action was automatic and self-executing (see, Connor v. Deas, 255 A.D.2d 287 ; Dolson v. DiPietro, 251 A.D.2d 535 ).
Contrary to the plaintiff's contention, there is no basis for the retroactive application of the current CPLR 306-b (see, Connor v. Deas, supra; Floyd v. Salamon Bros., 249 A.D.2d 139 ).
The plaintiff's remaining contentions are without merit.
BRACKEN, J.P., SANTUCCI, ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.