Opinion
November 17, 1994
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
The IAS Court properly found that plaintiff subrogee is not entitled to amend its complaint. The action was initially commenced in Civil Court where the purchase of an index number and filing of the summons with proof of service is mandatory (CCA 409; 22 NYCRR 208.4; see, Chalfonte Realty Corp. v. Streator, Inc., 142 Misc.2d 501). Thus, plaintiff's sole remedy was to apply for an order, nunc pro tunc, in Civil Court for a late filing of proof of service (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, CCA 409, at 145). Since, defendant had not waived its right to assert the defense of statute of limitations and since it is undisputed that the applicable statute of limitations has expired, should plaintiff seek the aforementioned remedy in Civil Court, defendant would then assert the affirmative defense and the action would be dismissed.
Concur — Asch, J.P., Rubin, Nardelli and Tom, JJ.