Opinion
February 16, 1978
Appeal from an order of the Supreme Court at Special Term, entered April 6, 1977 in Warren County, which granted defendant's motion to dismiss plaintiff's complaint. On November 1, 1976, defendant's motion to dismiss the medical malpractice complaint, alleging acts that occurred in 1972, on the grounds: (a) that in personam jurisdiction had not been conferred on the court because of plaintiff's failure to comply with the provisions of CPLR 308 (subd 2); and (b) that the applicable three-year Statute of Limitations (CPLR 214) had expired, was granted. No appeal was taken from the order of dismissal. Plaintiff attempted to commence a new action on December 2, 1976 by mailing a copy of the original summons and complaint to the defendant's residence, his first service having been found to be defective because of this omission. Again, defendant moved to dismiss on the ground that service by mail is an unauthorized method of obtaining personal jurisdiction of a defendant, and upon the further ground that the Statute of Limitations had expired. The motion was granted. This pro se appeal ensued. Service must be made in conformity with the appropriate provisions of the CPLR. In the absence of a court order, there is no authority in the law for obtaining personal jurisdiction over a defendant by mailing him a summons (Marcy v Woodin, 18 A.D.2d 944). Next, since there was no appeal from the order of November 1, 1976 the plaintiff was legally posited as if no action had been commenced. Accordingly, the sufficiency of his second action must rest on its own merit without benefit of any partial correctness of his first action. Since the service of the second action did not confer in personam jurisdiction of defendant on the court, it was properly held to be defective. Lastly, in order to finalize the matter, we hold that the second action was subject to dismissal because of the passage of the applicable three-year Statute of Limitations (CPLR 214, 3211, subd [a], par 8). Order affirmed, without costs. Mahoney P.J., Greenblott, Sweeney and Kane, JJ., concur; Herlihy, J. not taking part.