Opinion
Submitted September 15, 1999
November 15, 1999
In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated November 30, 1998, which denied her motion to dismiss the action on the ground that the Statute of Limitations had expired.
Diamond, Paino, Cardo, King, Peters Fodera, Brooklyn, N.Y., for appellant. Mitchell Incantalupo, Long Island, N.Y. (Lorenzo J. Tasso of counsel), for respondent.
FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.
The plaintiff sought to recover damages for personal injuries and injury to property allegedly incurred in a 1994 accident. The complaint was filed on June 12, 1997, and was automatically dismissed on October 10, 1997, due to the plaintiff's failure to file proof of service ( see, CPLR former 306-b[a]; Williamson v. Edwards, 261 A.D.2d 612 [2d Dept., May 24, 1999]). Although the plaintiff served the defendant with a summons and complaint in January 1998, since the plaintiff failed to purchase a new index number and refile the summons and complaint within 120 days of October 10, 1997, the second action was not properly commenced and was a nullity ( see, Gershel v. Porr, 89 N.Y.2d 327, 330-32; Gold v. Noori, 261 A.D.2d 208 [1st Dept., May 13, 1999]; Kelly v. Delaney, 248 A.D.2d 360 [2d Dept., Mar. 2, 1999]; Dolson v. DiPietro, 251 A.D.2d 535; Midamerica Fed. Sav. Bank v. Gaon, 242 A.D.2d 610). In any event, we note that the three-year Statute of Limitations has expired.
SANTUCCI, J.P., ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.