Antoine v. Patel

—In an action, inter alla, to recover damages for wrongful death, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated January 12, 1999, as granted the defendant’s motion to reargue that branch of his prior motion which was to dismiss the complaint for failure to file a timely proof of service and, upon reargument, denied that branch of the motion as academic. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly concluded that the plaintiff failed to timely file proof of service pursuant to CPLR former 306-b (a). Consequently, the dismissal of the plaintiff’s action was automatic and self-executing (see, Connor v Deas, 255 AD2d 287; Dolson v DiPietro, 251 AD2d 535). Contrary to the plaintiff’s contention, there is no basis for the retroactive application of the current CPLR 306-b (see, Connor v Deas, supra; Floyd v Salamon Bros., 249 AD2d 139). The plaintiff’s remaining contentions are without merit. Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.