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.