Opinion
CA 02-00587
October 1, 2002.
Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered August 3, 2001, which granted defendant's motion to dismiss the third amended complaint.
STEWART L. WEISMAN, MANLIUS, FOR PLAINTIFF-APPELLANT.
FAGER AMSLER, SYRACUSE (JOHN P. POWERS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted defendant's motion to dismiss the third amended complaint pursuant to CPLR 3211 (a)(8) based upon plaintiff's failure to file a summons. "[S]ervice of process without first * * * filing the initiatory papers is a nullity, the action * * * never having been properly commenced" ( Matter of Gershel v. Porr, 89 N.Y.2d 327, 330; see Weichert v. Brouse, 288 A.D.2d 841, lv denied 97 N.Y.2d 608, cert denied ___ U.S. ___, 122 S.Ct. 2358; Burrell v. Countrytowne Apt. Partnership, 247 A.D.2d 805).