KEGLIC v. FLATER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the action is dismissed.

The plaintiff sought to recover damages for personal injuries and injury to property allegedly incurred in a 1994 accident. The complaint was filed on June 12, 1997, and was automatically dismissed on October 10, 1997, due to the plaintiff's failure to file proof of service ( see, CPLR former 306-b[a]; Williamson v. Edwards, 261 A.D.2d 612 [2d Dept., May 24, 1999]). Although the plaintiff served the defendant with a summons and complaint in January 1998, since the plaintiff failed to purchase a new index number and refile the summons and complaint within 120 days of October 10, 1997, the second action was not properly commenced and was a nullity ( see, Gershel v. Porr, 89 N.Y.2d 327, 330-32; Gold v. Noori, 261 A.D.2d 208 [1st Dept., May 13, 1999]; Kelly v. Delaney, 248 A.D.2d 360 [2d Dept., Mar. 2, 1999]; Dolson v. DiPietro, 251 A.D.2d 535; Midamerica Fed. Sav. Bank v. Gaon, 242 A.D.2d 610). In any event, we note that the three-year Statute of Limitations has expired.

SANTUCCI, J.P., ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.