Bochen v. Schieffelin & Somerset Co. , 661 N.Y.S.2d 982 ( 1997 )

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Golden, J.), dated May 24, 1996, which denied their motion to vacate the automatic dismissal of their complaint pursuant to CPLR 306-b (a) and for leave to file proof of service nunc pro tunc.

Ordered that the order is affirmed, with one bill of costs.

The plaintiffs concede that they failed to file proof of service within 120 days after the summons and complaint were filed. Since the defendants had not appeared in the action within that 120-day period, the complaint was automatically dismissed pursuant to CPLR 306-b (a) (see, Long v Quinn, 234 AD2d 520; Brackett v St. Mary’s Hosp., 233 AD2d 357). Consequently, there was no action pending for which nunc pro tunc relief could be granted (see, Long v Quinn, supra; Mohammed v Elassal, 226 AD2d 509). The plaintiffs’ only remedy was to timely commence a second action (see, Brackett v St. Mary’s Hosp., supra; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160; CPLR 306-b [b]; 205 [a]), which they failed to do. O’Brien, J. P., Sullivan, Goldstein and Luciano, JJ., concur.