Nadherny v. Eppel

—Appeal from an order of Supreme Court, Cayuga County (Corning, J.), entered August 3, 2001, which granted defendant’s motion to dismiss the third amended complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion to dismiss the third amended complaint pursuant to CPLR 3211 (a) (8) based upon plaintiff’s failure to file a summons. “[S]ervice of process without first * * * filing the initiatory papers is a nullity, the action * * * never having been properly commenced” (Matter of Gershel v Porr, 89 NY2d 327, 330; see Weichert v Brouse, 288 AD2d 841, lv denied 97 NY2d 608, cert denied — US —, 122 S Ct 2358; Burrell v Countrytowne Apt. Partnership, 247 AD2d 805). Present — Green, J.P., Hayes, Hurlbutt, Gorski and Lawton, JJ.