Epke v. Park Ridge Hospital

—Order unanimously reversed on the law with costs, motions denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants’ motions to dismiss the complaint for failure to file proof of service of the summons and complaint within 120 days of commencement of the action in accordance with CPLR former 306-b. Where, as here, defendants appeared in the action before the expiration of the 120-day period, such filing was not required (see, CPLR former 306-b [a]; Tucker v Leak, 268 AD2d 320; Lieber v Sette-Juliano Constr. Corp., 228 AD2d 419; Cerrito v Galioto, 216 AD2d 265). Defendants’ reliance on Zimmer v Lake Shore Hosp. (272 AD2d 957, Iv denied 96 NY2d 705) is misplaced because the defendants in that case did not appear 892 prior to the expiration of the 120-day period. (Appeal from Order of Supreme Court, Monroe County, Aífronti, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Gorski and Lawton, JJ.