| O'Keefe v Baiettie |
| 2010 NY Slip Op 03296 [72 AD3d 916] |
| April 20, 2010 |
| Appellate Division, Second Department |
| John O'Keefe, Appellant, v Aronne Baiettie, Defendant,and Allison Sullivan, Respondent. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Jonathan C. Sullivan of counsel), forrespondent.
In an action, inter alia, to recover damages for false arrest, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), datedAugust 8, 2008, as granted that branch of the motion of the defendant Allison Sullivan whichwas pursuant to CPLR 3211 (a) (8), in effect, to dismiss the amended complaint insofar asasserted against her on the ground of lack of personal jurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, the facts, and in theexercise of discretion, with costs, that branch of the motion of the defendant Allison Sullivanwhich was pursuant to CPLR 3211 (a) (8), in effect, to dismiss the amended complaint insofar asasserted against her on the ground of lack of personal jurisdiction is denied, and the matter isremitted to the Supreme Court, Orange County, to determine that branch of the motion of thedefendant Allison Sullivan which was, in effect, to dismiss the amended complaint insofar asasserted against her on the ground that she was improperly served with process pursuant toCPLR 308 (4).
On September 27, 2007, the plaintiff commenced an action against the defendants, AronneBaietti and Allison Sullivan, by filing a summons and complaint in the Supreme Court, OrangeCounty. On October 5, 2007, without seeking leave from the court to amend his complaint, theplaintiff filed an amended complaint bearing the same index number as the original complaint.Aside from its title and date, and the fact that it contained exhibits omitted from the originalcomplaint, the amended complaint was the same as the original complaint. Copies of thesummons and amended complaint, but not the original complaint, allegedly were then servedupon both defendants on October 27, 2007, pursuant to CPLR 308 (4).
Sullivan moved, inter alia, pursuant to CPLR 3211 (a) (8), in effect, to dismiss the amendedcomplaint insofar as asserted against her on the ground of lack of personal jurisdiction,contending that the plaintiff failed to strictly comply with the commencement-by-filingrequirements of CPLR 304 and 306-b by filing and serving the amended complaint without leaveof court under [*2]the same index number and without paying anew filing fee. The Supreme Court granted that branch of Sullivan's motion, and did not decidethe remaining branch of her motion, which was to dismiss the amended complaint insofar asasserted against her on the ground that she was improperly served with process pursuant toCPLR 308 (4).
Contrary to Sullivan's contention, leave to amend a complaint is not required where, as here,the amended complaint is served before the period for responding to the original complaint hasexpired (see CPLR 3025 [a]; Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403, 406[2009]; Moran v Hurst, 32 AD3d909, 910 [2006]; cf. CPLR 305 [c]), and no additional filing fee or index number isrequired to accompany the filing of an amended complaint (see CPLR 8018 [d] [1]).Moreover, the Supreme Court erred in concluding, in effect, that the papers allegedly servedupon Sullivan had not been properly filed with the Supreme Court (cf. Page v Marusich, 30 AD3d871 [2006]).
Sullivan's remaining contention is without merit.
Since the Supreme Court did not determine that branch of Sullivan's motion which was, ineffect, to dismiss the amended complaint insofar as asserted against her on the ground that shewas improperly served with process pursuant to CPLR 308 (4), we remit the matter to theSupreme Court, Orange County, for such a determination. Dillon, J.P., Florio, Belen and Roman,JJ., concur.