Luis v. New York City Housing Authority , 766 N.Y.S.2d 553 ( 2003 )

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 2, 2002, which denied plaintiffs’ motion to purchase a new index number, deem the summons and complaint to have been filed nunc pro tunc and restore the case to the active calendar, and granted defendant’s cross motion dismissing the complaint for lack of personal jurisdiction, unanimously affirmed, without costs.

Plaintiffs’ failure to file the summons and complaint with the County Clerk prior to serving the pleadings upon defendant deprived the court of in personam jurisdiction (Gershel v Porr, 89 NY2d 327, 332 [1996]). Since the action was not properly commenced and the statute of limitations had run, the defect could not be cured even in the apparent absence of prejudice to defendant (CPLR 304, 306-a; Gershel at 328-329; Mandel v Waltco Truck Equip. Co., 243 AD2d 542, 543 [1997], lv denied 91 NY2d 809 [1998]; see also Hertz v Schiller, 239 AD2d 240, 241-242 [1997]). The motion for leave to pay a second filing fee nunc pro tunc was properly denied “because there was no action pending for which nunc pro tunc relief could be granted” (Kelly v Delaney, 248 AD2d 360, 361 [1998], lv denied 92 NY2d 803 [1998]). Finally, defendant’s omission to raise the jurisdictional defenses in its answer did not operate as a waiver of the defect in the commencement of the action because service of process was a nullity in the absence of the filing of the pleadings with the clerk and payment of the requisite fee (see Kelly at 360-361; Mandel at 543). Concur — Andrias, J.P., Saxe, Williams, Marlow and Gonzalez, JJ.