Opinion
January 31, 1992
Appeal from the Supreme Court, Onondaga County, Roy, J.
Present — Denman, P.J., Doerr, Boomer, Pine and Balio, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred by granting the motion of plaintiffs to serve an amended complaint to add Morris L. Cleverley Engineering, P.C., and CNY Consolidated Contractors, formerly known as Cleverley CM Associates, Inc., as defendants. Plaintiffs served an amended summons and complaint without leave of the court within the Statute of Limitations period, but that service was a nullity (see, Yonker v. Amol Motorcycles, 161 A.D.2d 638; Christiansen v. City of New York, 144 A.D.2d 328, lv denied 73 N.Y.2d 710; Camacho v. New York City Tr. Auth., 115 A.D.2d 691, 692; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1003:1, at 451). Plaintiffs did not bring the motion for leave to serve an amended complaint until after the Statute of Limitations had run; therefore, plaintiffs' complaint was time-barred and their motion should have been denied (see, Vastola v. Maer, 48 A.D.2d 561, 565, affd 39 N.Y.2d 1019). We find no merit to plaintiffs' argument that delivery of the summons and complaint to the Sheriff pursuant to CPLR 203 (b) (5) (i) tolled the Statute of Limitations for the purpose of making a motion to serve an amended complaint.