Opinion
December 7, 1998
Appeal from the Supreme Court, Kings County.
Ordered that the order is affirmed insofar as appealed from, with costs.
The complaint was automatically dismissed against the defendants MS Deli and Mun Taek Oh d/b/a MS Deli when the plaintiffs failed to file proof of service, and there was no appearance by either defendant within 120 days after the date of filing of the summons and complaint ( see, CPLR former 306-b; Cerrito v. Galioto, 216 A.D.2d 265). Under the circumstances of this case, we find that the plaintiffs' argument that the defendant MS Deli appeared in this action is without merit ( see, Simkins v. Gruenspan, 118 Misc.2d 107, 109; cf., Nardi v. Hirsch, 253 A.D.2d 575).
In light of our determination herein, it is unnecessary to reach the appellants' remaining contentions.
Bracken, J. P., Ritter, Copertino, Santucci and Altman, JJ., concur.