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Zimmer v. Lake Shore Hospital

272 A.D.2d 957 Court N.Y. App. Div. Decision date 2000-05-10 English

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p. 957
Pamela L. Zimmer et al., Respondents, v Lake Shore Hospital et al., Appellants.
[707 NYS2d 563]

—Order unanimously reversed on the law with costs, motions granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motions to dismiss the complaint. Plaintiffs commenced this medical malpractice action by filing a summons and complaint in the County Clerk’s office on October 31, 1997.

p. 958
They failed to file proof of service, however, until March 4, 1998. Under CPLR former 306-b (a), failure to file proof of service within 120 days was a “fatal jurisdictional defect” resulting in automatic dismissal (Matter of Barsalow v City of Troy, 208 AD2d 1144 , 1145). Because the Statute of Limitations expired on November 4, 1997 and plaintiffs did not avail themselves of the extension provisions of CPLR former 306-b (b), the action is time-barred (see, Matter of Barsalow v City of Troy, supra).

Plaintiffs’ reliance on Matter of Fry v Village of Tarrytown ( 89 NY2d 714 ) is misplaced. That case involved a dismissal based on a defect in the initial papers filed with the clerk of the court. The Court of Appeals concluded that the threshold filing defect did not authorize a sua sponte dismissal because the respondents appeared in the proceeding and litigated the merits without raising that objection (see, Matter of Fry v Village of Tarrytown, supra, at 716 ). Here, the dismissal was for failure to file proof of service (see, Connor v Deas, 255 AD2d 287 , 288; 2 Weinstein-Korn-Miller, NY Civ Prac ¶306-b.02). (Appeals from Order of Supreme Court, Erie County, O’Donnell, J. — Dismiss Pleading.) Present — Pine, J. P., Hayes, Scudder and Kehoe, JJ.

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