Opinion
CA 04-01722.
March 18, 2005.
Appeal from an order of the Supreme Court, Livingston County (Ronald A. Cicoria, A.J.), entered November 17, 2003. The order granted plaintiff's motion for summary judgment in an action for breach of contract.
Before: Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for breach of contract, alleging that defendant failed to meet his child support obligations as set forth in a separation agreement signed by the parties in December 1990. Rather than purchasing a new index number when commencing the instant action, plaintiff filed the action under the index number assigned to the 1992 divorce action. When commencing a new action, however, "the failure to pay the filing fee and secure a new index number is a nonwaivable defect" ( Chiacchia Fleming v. Guerra, 309 AD2d 1213, 1214, lv denied 2 NY3d 704), and therefore, the instant action was not properly commenced. Despite defendant's failure to move for dismissal, the action is a nullity and the complaint must be dismissed ( see Sangiacomo v. County of Albany, 302 AD2d 769, 770-771).