Mekkelson v. Morris L. Cleverley Engineering

Memorandum: Supreme Court erred by granting the motion of plaintiffs to serve an amended complaint to add Morris L. Cleverley Engineering, P. C., and CNY Consolidated Contractors, formerly known as Cleverley CM Associates, Inc., as defendants. Plaintiffs served an amended summons and complaint without leave of the court within the Statute of Limitations period, but that service was a nullity (see, Yonker v Amol Motorcycles, 161 AD2d 638; Christiansen v City of New York, 144 AD2d 328, lv denied 73 NY2d 710; Camacho v New York City Tr. Auth., 115 AD2d 691, 692; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C1003:l, at 451). Plaintiffs did not bring the motion for leave to serve an amended complaint until after the Statute of *1057Limitations had run; therefore, plaintiffs’ complaint was time-barred and their motion should have been denied (see, Vastola v Maer, 48 AD2d 561, 565, affd 39 NY2d 1019). We find no merit to plaintiffs’ argument that delivery of the summons and complaint to the Sheriff pursuant to CPLR 203 (b) (5) (i) tolled the Statute of Limitations for the purpose of making a motion to serve an amended complaint. (Appeal from Order of Supreme Court, Onondaga County, Roy, J. — Amended Complaint.) Present — Denman, P. J., Doerr, Boomer, Pine and Balio, JJ.