Tamburo v. P & C Food Markets, Inc.

Memorandum: Plaintiff, who claimed to have been injured in defendant’s place of business on April 29, 1966, delivered a summons to the Sheriff of Cayuga County on April 29, 1969, the last day on which an action for negligence could be commenced. (CPLR 214, subd. 5.) The summons failed to include in the caption the names of the court and county wherein the action was brought as required by CPLR 2101 (subd. [e]). It was served the same day by the Sheriff but defendant did not enter a notice of appearance. A supplemental summons designating the Supreme Court, Cayuga County was delivered to the Sheriff on June 19, 1969, and served on defendant the following day. Defendant served a notice of appearance on July 3, 1969, and received a complaint on July 24, 1969. In its answer, defendant raised the affirmative defense that the action was barred by the Statute of Limitations, and subsequently it moved to dismiss the action pursuant to CPLR 3211 (subd. [a], par. 5). Special Term denied the motion and granted plaintiff’s cross motion to amend the caption of the summons to State of New York, Supreme Court, County of Cayuga nunc pro tunc as of April 24, 1969. Defendant’s motion should have been granted and the complaint dismissed, as plaintiff’s action was barred by the Statute of Limitations. A summons which fails to name the court in which the action is brought is void (Dix v. Palmer and Schoolcraft, 5 How. Prac. 233, 234; James v. Kirkpatrick, 5 How. Prac. 241; 42 Am. Jur., Process, § 14; 93 ALR 2d 377-383) and a void summons cannot be amended to cure the defect. (Fischer v. Langbein, 103 N. Y. 84; Rockefeller v. Hein, 176 Misc. 659.) Defendant’s failure to return the first summons did not waive the omission, since it was a jurisdictional defect and not merely a defect in form. (CPLR 2101, subd. [f].) The service on April 29, 1969, was a nullity and the Statute of Limitations had already run when the supplemental summons was delivered to the Sheriff on June 19, 1969, and served on June 20, 1969. (Appeal from order of Cayuga Special Term denying motion to dismiss complaint in negligence action.) Present—-Marsh, J. P., Gabrielli, Moule, Cardamone and Henry, JJ.