Narrative Opinion Summary
In a negligence action for personal injuries, the plaintiffs appealed an order from the Supreme Court of Kings County, which denied their motion to vacate the automatic dismissal of their complaint under CPLR 306-b (a) and for leave to file proof of service nunc pro tunc. The court affirmed the order with one bill of costs. The plaintiffs admitted to failing to file proof of service within the mandated 120 days after the summons and complaint were filed. As the defendants did not appear within that timeframe, the complaint was automatically dismissed per CPLR 306-b (a). Consequently, no action was pending for nunc pro tunc relief to be granted. The plaintiffs' only recourse was to timely commence a second action, which they did not pursue. Judges O’Brien, Sullivan, Goldstein, and Luciano concurred with the decision.
Legal Issues Addressed
Automatic Dismissal Under CPLR 306-bsubscribe to see similar legal issues
Application: The court applied CPLR 306-b to automatically dismiss the plaintiffs' complaint due to their failure to file proof of service within 120 days after filing the summons and complaint.
Reasoning: The plaintiffs admitted to failing to file proof of service within the mandated 120 days after the summons and complaint were filed.
Nunc Pro Tunc Relief Unavailable Without Pending Actionsubscribe to see similar legal issues
Application: The court determined that nunc pro tunc relief was not available because the automatic dismissal left no action pending.
Reasoning: Consequently, no action was pending for nunc pro tunc relief to be granted.
Recourse for Plaintiffs After Dismissalsubscribe to see similar legal issues
Application: The decision clarified that the plaintiffs' only remaining option after the dismissal was to commence a second action, which they failed to do.
Reasoning: The plaintiffs' only recourse was to timely commence a second action, which they did not pursue.