Baptiste v “John Doe”, 2011 NY Slip Op 07708 [89 AD3d 436]

November 1, 2011

Appellate Division, First Department

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H. Fitzmore Harris, P.C., New York, for appellant.

Lifflander & Reich, LLP, New York (Kent B. Dolan of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about March 10, 2011, which granted defendants’ motion to dismiss the complaint, and denied plaintiff’s motion for an extension of time to serve the summons and complaint and for a default judgment against defendants, unanimously affirmed, without costs.

Since plaintiff’s filing of this action was untimely, it was a nullity, “and there was no service period to extend” ( Gonzalez v New York City Health & Hosps. Corp. , 29 AD3d 369 , 370 [2006]; Croce v City of New York , 69 AD3d 488 [2010]). In the absence of an action pending against them, defendants’ own tardiness in moving to “dismiss” did not constitute a waiver of the statute of limitations defense ( see CPLR 3211 [e]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ..