| Goldenberg v Westchester County Health Care Corp. |
| 2009 NY Slip Op 09616 [68 AD3d 1056] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Arthur Goldenberg, Appellant, v Westchester CountyHealth Care Corporation, Also Known as Westchester County Medical Center, et al.,Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Faisal A. Khan ofcounsel), for respondents.
In an action to recover damages for medical malpractice and lack of informed consent, theplaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.),entered September 29, 2008, which granted the defendants' motion to dismiss the complaint astime-barred, and denied his cross motion, inter alia, for leave to file the summons and complaintnunc pro tunc.
Ordered that the order is affirmed, with costs.
The plaintiff served the summons and complaint upon the defendants in this malpracticeaction without ever filing them or obtaining an index number and paying the filing fee for theaction. Accordingly, the action was never validly commenced (see CPLR 304).Following the expiration of the applicable statute of limitations, the defendants moved to dismissthe complaint as time-barred, and the plaintiff cross-moved, inter alia, for leave to file thesummons and complaint nunc pro tunc. The Supreme Court correctly granted the defendants'motion and denied the plaintiffs' cross motion.
Contrary to the plaintiff's contention, the defendants raised timely objections to the plaintiff'sfailure to file and to the untimeliness of the action, since they asserted affirmative defensesregarding lack of jurisdiction and the expiration of the statute of limitations in their amendedverified answer (see CPLR 3211 [e]; see generally Harris v Niagara Falls Bd. ofEduc., 6 NY3d 155, 159 [2006]; cf. Sirkis v Cohen, 23 AD3d 369 [2005]).Similarly, the defendants were not obligated to move to dismiss the action within 60 daysfollowing the service of their answer pursuant to CPLR 3211 (e), since their objection was notbased on improper service (see Sangiacomo v County of Albany, 302 AD2d 769, 772[2003]). Indeed, the plaintiff was free to move pursuant to CPLR 3211 (b) to dismiss thejurisdictional defense if he desired a more prompt resolution of the merits of that defense.[*2]
Furthermore, the plaintiff cannot rely upon the remediallanguage of CPLR 2001 to cure his error, since that statute does not excuse a complete failure tofile within the statute of limitations, as occurred here (see Matter of Miller v Waters, 51AD3d 113, 117-118 [2008]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY,Book 7B, CPLR C304:3, 2009 Pocket Part, at 162, 165). Likewise, the plaintiff cannot rely onhis filing of a proposed complaint in a prior proceeding for leave to file a late notice of claim toact as the functional equivalent of a filing in this action (see generally Rybka v New YorkCity Health & Hosps. Corp., 263 AD2d 403 [1999]). The papers served in an action mustconform in all material respects to the papers that are filed to commence it (see Matter ofGershel v Porr, 89 NY2d 327, 332 [1996]; Page v Marusich, 30 AD3d 871, 873[2006]; Louden v Rockefeller Ctr. N., 249 AD2d 25, 26 [1998]). Here, the complaintserved in this action dramatically differed, substantively and materially, from the proposedcomplaint which the plaintiff filed in the prior proceeding. Accordingly, the Supreme Courtproperly granted the defendant's motion to dismiss the complaint. Moreover, the court properlydenied the plaintiff's cross motion for leave to file the summons and complaint nunc pro tuncsince, under the circumstances herein, the granting of that relief would impermissibly extend thestatute of limitations (see CPLR 201; Bradley v St. Clare's Hosp., 232 AD2d814, 815 [1996]). Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.