Opinion
2056
October 30, 2003.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 2, 2002, which denied plaintiffs' motion to purchase a new index number, deem the summons and complaint to have been filed nunc pro tunc and restore the case to the active calendar, and granted defendant's cross motion dismissing the complaint for lack of personal jurisdiction, unanimously affirmed, without costs.
Matthew F. Schwartz, for plaintiffs-appellants.
Herbert Rubin, for defendant-respondent.
Before: Andrias, J.P., Saxe, Williams, Marlow, Gonzalez, JJ.
Plaintiffs' failure to file the summons and complaint with the County Clerk prior to serving the pleadings upon defendant deprived the court of in personam jurisdiction (Gershel v. Porr, 89 N.Y.2d 327, 332). Since the action was not properly commenced and the statute of limitations had run, the defect could not be cured even in the apparent absence of prejudice to defendant (CPLR 304; 306-a; Gershel, at 328-329; Mandel v. Waltco Truck Equip. Co., 243 A.D.2d 542, 543, lv denied 91 N.Y.2d 809; see also Hertz v. Schiller, 239 A.D.2d 240, 241-242). The motion for leave to pay a second filing fee nunc pro tunc was properly denied "because there was no action pending for which nunc pro tunc relief could be granted" (Kelly v. Delaney, 248 A.D.2d 360, 361,lv denied 92 N.Y.2d 803). Finally, defendant's omission to raise the jurisdictional defenses in its answer did not operate as a waiver of the defect in the commencement of the action because service of process was a nullity in the absence of the filing of the pleadings with the clerk and payment of the requisite fee (see Kelly, at 360-361; Mandel, at 543).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.