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Cerrito v. Galioto

Appellate Division of the Supreme Court of New York, Second Department
Jun 5, 1995
216 A.D.2d 265 (N.Y. App. Div. 1995)

Opinion

June 5, 1995

Appeal from the Supreme Court, Queens County (LeVine, J.).


Ordered that the order is affirmed, with costs.

According to CPLR 306-b (a), "[i]f proof of service is not filed and there has been no appearance by the defendant within [120 days after the date of filing of the summons and complaint] the action * * * shall be deemed dismissed as to the nonappearing party * * * without prejudice and without costs" (emphasis supplied). In this case, the defendant appeared by the service of an answer (see, CPLR 320 [a]) within 120 days after the filing of the summons and complaint, and this "obviated * * * the need for filing" (1 Weinstein-Korn-Miller, N Y Civ Prac ¶ 306-b.01). The defendant's argument that the court was ousted of its jurisdiction over him solely because of the plaintiff's failure to file proof of service is thus without merit. Rosenblatt, J.P., Ritter, Copertino and Santucci, JJ., concur.


Summaries of

Cerrito v. Galioto

Appellate Division of the Supreme Court of New York, Second Department
Jun 5, 1995
216 A.D.2d 265 (N.Y. App. Div. 1995)
Case details for

Cerrito v. Galioto

Case Details

Full title:ROBERT H. CERRITO, Respondent, v. ANTHONY GALIOTO, Appellant

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

Date published: Jun 5, 1995

Citations

216 A.D.2d 265 (N.Y. App. Div. 1995)
627 N.Y.S.2d 770