| Britt v Buffalo Mun. Hous. Auth. |
| 2007 NY Slip Op 07260 [43 AD3d 1443] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Carmen Britt, Individually and as Executor of Lula Baity,Deceased, Appellant, v Buffalo Municipal Housing Authority et al., Defendants, and Phillip J.Rados, M.D., Respondent. |
—[*1] Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Kevin D. McCarthy of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John P. Lane, J.), entered January10, 2006. The order granted the motion of defendant Phillip J. Rados, M.D. to dismiss thecomplaint against him.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law with costs, the motion is denied, and the complaint against defendant PhillipJ. Rados, M.D. is reinstated.
Memorandum: Plaintiff and the original coplaintiff, now plaintiff's decedent, commencedthis action for damages asserting various tort theories of liability by the timely filing and serviceof a summons with notice. Counsel for defendant Phillip J. Rados, M.D. served a notice ofappearance and demand for the complaint on plaintiff's attorney. More than 20 days thereafter,plaintiff's attorney filed a second summons in the same action, using the same index number andadding two new parties. A copy of that second summons (hereafter, supplemental summons) wasserved by mail on the attorney for Rados, together with the complaint. Rados amended hisanswer to assert the defenses of lack of jurisdiction and statute of limitations, and Supreme Courtgranted his motion to dismiss the complaint against him based on those defenses. That was error.
Contrary to the contention of Rados and the apparent conclusion of the court, plaintiff'sfailure to comply with the requirements of CPLR 1003 by obtaining leave of court to add newparties before filing the supplemental summons did not deprive the court of jurisdiction overRados. Noncompliance with CPLR 1003 results in the failure to obtain personal jurisdiction overthe added defendants (see e.g. Crook v E.I. du Pont de Nemours Co. [appeal No. 2], 181AD2d 1039 [1992], affd 81 NY2d 807 [1993]; Brown v Marine Midland Bank,224 AD2d 1016 [1996], lv dismissed 88 NY2d 919 [1996]), but such noncompliance hasno effect on the court's jurisdiction over the original defendants. Contrary to the furthercontention of Rados, the improper filing and service of the supplemental summons did not effectan "abandonment" of the summons with notice, and thus [*2]hisreliance on Matter of Gershel v Porr (89 NY2d 327 [1996]) is misplaced.Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.