Schaffrick v. City of Kingston

Appeal from an order of the Supreme Court (Bradley, J.), entered April 26, 1994 in Ulster County, which granted plaintiff’s motion to file a summons and complaint nunc pro tunc.

Plaintiff commenced this action on May 18, 1990 by the service of the summons and complaint upon defendants but did not file the summons and complaint nor purchase an index number until October 4, 1993. Thereafter, he obtained an order from Supreme Court permitting the filing of the summons and complaint nunc pro tunc on or before December 31, 1992, prompting this appeal.

We affirm. Since this action was commenced prior to July 1, 1992, the original filing law (CPLR former 306-a, added by L 1991, ch 166, § 381) remains applicable (see, De Maria v Smith, *893197 AD2d 114, 116; Blair and Aloe, New Commencement By Filing Law: A Practitioner’s Survival Guide, NYLJ, June 26, 1992, at 1, col 1). Under that statute the application for a nunc pro tunc order was strictly pro forma as it provided that "[w]here a summons in an action * * * has not been filed within [30 days after service is complete], the court upon application shall order the filing thereof nunc pro tunc” (see, CPLR former 306-a [c], as added by L 1991, ch 166, § 381; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ]j 306-a.01).

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.