Andrulis v. Fox

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motions of defendants Judith Knight and Justin Knight and defendant Courtney L. Fox to dismiss the action based upon plaintiffs alleged failure to comply with CPLR 305 (b) by sufficiently stating the nature of the action in the summons. With respect to the summons served upon Fox, the notice required by the statute does not apply because the complaint was served with the summons (see, Everitt v Everitt, 4 NY2d 13, 17; 3A Carmody-Wait 2d, NY Prac § 24:73, at 539). With respect to the identical summons served upon the Knights without the complaint, we conclude that the notice identifying the nature of the action as “tort” is sufficient to comply with the statute (see generally, Darrow v Krzys, 261 AD2d 778; Bullis v American Motors Corp., 175 AD2d 535, 536). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Dismiss Pleading.) Present— Green, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.