Opinion
May 10, 2000.
Appeals from Order of Supreme Court, Erie County, O'Donnell, J. — Dismiss Pleading.
Order unanimously reversed on the law with costs, motions granted and complaint dismissed.
Before: Pine, J. P., Hayes, Scudder and Kehoe, JJ.
Memorandum:
Supreme Court erred in denying defendants' motions to dismiss the complaint. Plaintiffs commenced this medical malpractice action by filing a summons and complaint in the County Clerk's office on October 31, 1997. They failed to file proof of service, however, until March 4, 1998. Under CPLR former 306-b(a), failure to file proof of service within 120 days was a "fatal jurisdictional defect" resulting in automatic dismissal ( Matter of Barsalow v. City of Troy, 208 A.D.2d 1144, 1145). Because the Statute of Limitations expired on November 4, 1997 and plaintiffs did not avail themselves of the extension provisions of CPLR former 306-b(b), the action is time-barred ( see, Matter of Barsalow v. City of Troy, supra).
Plaintiffs' reliance on Matter of Fry v. Village of Tarrytown ( 89 N.Y.2d 714) is misplaced. That case involved a dismissal based on a defect in the initial papers filed with the clerk of the court. The Court of Appeals concluded that the threshold filing defect did not authorize a sua sponte dismissal because the respondents appeared in the proceeding and litigated the merits without raising that objection ( see, Matter of Fry v. Village of Tarrytown, supra, at 716). Here, the dismissal was for failure to file proof of service ( see, Connor v. Deas, 255 A.D.2d 287, 288; 2 Weinstein-Korn-Miller, N Y Civ Prac ¶ 306-b.02).