Opinion
August 18, 1997
Appeal from the Supreme Court, Kings County (Golden, J.).
Ordered that the order is affirmed, with one bill of costs.
The plaintiffs concede that they failed to file proof of service within 120 days after the summons and complaint were filed. Since the defendants had not appeared in the action within that 120-day period, the complaint was automatically dismissed pursuant to CPLR 306-b (a) ( see, Long v. Quinn, 234 A.D.2d 520; Brackett v. St. Mary's Hosp., 233 A.D.2d 357). Consequently, there was no action pending for which nunc pro tunc relief could be granted ( see, Long v. Quinn, supra; Mohammed v. Elassal, 226 A.D.2d 509). The plaintiffs' only remedy was to timely commence a second action ( see, Brackett v. St. Mary's Hosp., supra; Matter of Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160; CPLR 306-b [b]; 205 [a]), which they failed to do.
O'Brien, J.P., Sullivan, Goldstein and Luciano, JJ., concur.