Opinion
March 28, 1994
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the the order is reversed, on the law, with one bill of costs, the motion is granted, the cross motion is denied, the amended complaint is dismissed, and the action against the remaining defendants is severed.
The plaintiff's failure to obtain leave of court before service of its supplemental summons and amended complaint to add a new party defendant constituted a jurisdictional defect requiring dismissal of the action against the new party defendant (see, Crook v. du Pont de Nemours Co., 181 A.D.2d 1039, 1040, affd 81 N.Y.2d 807). Notwithstanding the consent of all existing parties, joinder of a new party defendant without court approval is a nullity unless waived by the new party (see, Crook v. du Pont de Nemours Co., supra; Cantanese v. Lipschitz, 44 A.D.2d 579).
Moreover, since the failure to obtain court approval rendered the plaintiff's amended complaint a legal nullity, it was error for the Supreme Court to grant the plaintiff leave to amend her process nunc pro tunc (see, Crook v. du Pont de Nemours Co., supra). We further note that, under the circumstances of this case, the court could not have granted leave to amend the complaint prospectively, because the Statute of Limitations had run as of the date of the order appealed from. To the extent that Felix v. Tischler ( 73 A.D.2d 609) is to the contrary, it has been overruled by Crook v. du Pont de Nemours Co. (supra).
The parties' remaining contentions are without merit. Balletta, J.P., Ritter, Copertino and Goldstein, JJ., concur.