Brown v. Marine Midland Bank

—Order insofar as appealed from unanimously reversed on the law without costs, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying the cross motion of defendant DiPizio Construction Co., Inc. (DiPizio) to dismiss plaintiffs’ complaint against it. The failure to obtain leave of court to serve a supplemental summons and amended complaint to add DiPizio as an additional defendant constitutes a jurisdictional defect, requiring dismissal of plaintiffs’ action against DiPizio (see, Youngs v Kissing Bridge Ski Corp., 216 AD2d 967 ; Crook v du Pont de Nemours Co. [appeal No. 2], 181 AD2d 1039 , affd 81 NY2d 807 ; see also, Dauernheim v Lend-lease Cars, 202 AD2d 624 ).

Nor are plaintiffs entitled to recommence the action pursuant to CPLR 205 (a). Because plaintiffs’ action was not properly commenced in a timely manner, plaintiffs may not take advantage of CPLR 205 (a) (see, Dreger v New York State Thruway Auth., 81 NY2d 721 ; Parker v Mack, 61 NY2d 114 , 117; Markoff v South Nassau Community Hosp., 61 NY2d 283 , 287-288). (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Complaint.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.