Keglic v. Flater ( 1999 )

—In an action to recover damages for personal injuries and injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated November 30, 1998, which denied her motion to dismiss the action on the ground that the Statute of Limitations had expired.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The plaintiff sought to recover damages for personal injuries and injury to property allegedly incurred in a 1994 accident. The complaint was filed on June 12, 1997, and was automatically dismissed on October 10, 1997, due to the plaintiffs failure to file proof of service (see, CPLR former 306-b [a]; Williamson v Edwards, 261 AD2d 612). Although the plaintiff served the defendant with a summons and complaint in January 1998, since the plaintiff failed to purchase a new index number and refile the summons and complaint within 120 days of October 10, 1997, the second action was not properly commenced and was a nullity (see, Matter of Gershel v Porr, 89 NY2d 327, 330-332; Gold v Noori, 261 AD2d 208; Kelly v Delaney, 248 AD2d 360; Dolson v DiPietro, 251 AD2d 535; Midamerica Fed. Sav. Bank v Gaon, 242 AD2d 610). In any event, we note that the three-year Statute of Limitations has expired. Santucci, J. P., Altman, Friedmann and H. Miller, JJ., concur.