Narrative Opinion Summary
In an appeal concerning the enforcement of a stipulation, the defendant contests an order from the Supreme Court of Queens County, which denied his motion to dismiss the action based on the plaintiff's failure to file proof of service. The appellate court affirmed the lower court's order, noting that under CPLR 306-b, if proof of service is not filed and the defendant has not appeared within 120 days of filing the summons and complaint, the action would be dismissed without prejudice and costs. However, the defendant had submitted an answer within the stipulated period, which negated the necessity for the plaintiff to file proof of service. Consequently, the defendant's claim that the court lost jurisdiction due to the lack of filed proof of service was rejected. The decision was concurred by Justices Rosenblatt, Ritter, Copertino, and Santucci.
Legal Issues Addressed
Enforcement of Stipulation under CPLR 306-bsubscribe to see similar legal issues
Application: The appellate court affirmed the lower court's order, emphasizing that the defendant's submission of an answer within the stipulated period negated the necessity for the plaintiff to file proof of service.
Reasoning: The appellate court affirmed the lower court's order, noting that under CPLR 306-b, if proof of service is not filed and the defendant has not appeared within 120 days of filing the summons and complaint, the action would be dismissed without prejudice and costs.
Jurisdiction Retention Despite Lack of Filed Proof of Servicesubscribe to see similar legal issues
Application: The court determined that the jurisdiction was retained because the defendant submitted an answer within the required period, thus rejecting the claim of lost jurisdiction due to non-filing of proof of service.
Reasoning: However, the defendant had submitted an answer within the stipulated period, which negated the necessity for the plaintiff to file proof of service.