Opinion
March 29, 1999
Appeal from the order of the Supreme Court, Dutchess County (Bellantoni, J.).
Ordered that the appeal from the order dated January 20, 1998, is dismissed, as that order was superseded by the order dated July 2, 1998, made upon reargument; and it is further,
Ordered that the order dated July 2, 1998, is affirmed insofar as reviewed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The failure of the plaintiffs to file proof of service within 120 days after the filing of their summons and complaint on October 25, 1996, resulted in the automatic dismissal of the action in February 1997 ( see, CPLR former 306-b [a]; Kelly v. Delaney, 248 A.D.2d 360; Midamerica Fed. Sav. Bank v. Gaon, 242 A.D.2d 610; Srsich v. Newman, 232 A.D.2d 398; Matter of Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160). There is no express statutory authority to vacate this automatic dismissal and the plaintiffs' only remedy was to commence a second action ( see, Bochen v. Schieffelin Somerset Co., 242 A.D.2d 314; Brackett v. St. Mary's Hosp., 233 A.D.2d 357; Matter of Winston v. Freshwater Wetlands Appeals Bd., supra). However, although the plaintiffs served the summons and complaint upon the defendants' insurance carrier in March 1997 in accordance with an order of the court made pursuant to CPLR 308 (5), they never commenced a second action in accordance with the provisions of CPLR former 306-b (b). Therefore, the court properly granted the defendants' motion.
The plaintiffs' remaining contentions are without merit.
S. Miller, J. P., Santucci, Friedmann and Florio, JJ., concur.