Opinion
2001-08798
Argued June 13, 2002
July 30, 2002.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Nelson, J.), entered September 4, 2001, which granted the defendant's motion for leave to enter judgment in his favor based on the plaintiffs' failure to timely file proof of service in accordance with CPLR former 306-b and denied their cross motion to extend the time to file proof of service nunc pro tunc pursuant to CPLR 2004.
Richard M. O'Keefe, White Plains, N.Y. (Theodore Green of counsel), for appellants.
Santangelo, Benvenuto Slattery (James W. Tuffin, Manhasset, N.Y. [Gabriel Mignella] of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Since the plaintiffs failed to file proof of service within 120 days of the filing of the summons with notice and the defendant did not appear within that time period, dismissal of the action was automatic and self-executing pursuant to CPLR former 306-b (see Garcia v. Pointdujour, 292 A.D.2d 497; Antoine v. Patel, 268 A.D.2d 546). Contrary to the plaintiffs' contentions, nunc pro tunc relief pursuant to CPLR 2004 is not available (see Connor v. Deas, 255 A.D.2d 287; Long v. Quinn, 234 A.D.2d 520) and the current version of CPLR 306-b may not be applied retroactively (see Lindgren v. St. Vincent's Med. Ctr. of Richmond, 272 A.D.2d 451; Antoine v. Patel, supra). Consequently, the Supreme Court properly granted the defendant's motion and denied the plaintiffs' cross motion.
The plaintiffs' remaining contention is without merit.
O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.