In the Matter of Moog, Inc., Respondent, v. Town of Elma et al., Appellants

In the Matter of Moog, Inc., Respondent, v Town of Elma et al., Appellants. [670 NYS2d 132] [MAJORITY] —Order insofar as appealed from unanimously reversed on the law without costs, leave to recommence proceeding denied, motion granted and recommenced proceeding dismissed. Memorandum: In this tax certiorari proceeding, respondents appeal from an order that granted respondents’ motion to dismiss the original proceeding but granted petitioner leave to recommence the proceeding pursuant to CPLR former 306-b (b) and denied respondents’ motion to dismiss the recommenced proceeding. That part of the order dismissing the original proceeding “was superfluous” (Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146). Because petitioner failed to file timely proof of service in accordance with CPLR former 306-b (a), the dismissal was automatic and self-executing. In addition, because the original proceeding was “deemed dismissed” by operation of statute {ibid.), Supreme Court erred in granting petitioner leave to recommence the proceeding {see, Bochen v Schieffelin & Somerset Co., 242 AD2d 408, Iv dismissed 91 NY2d 866; Long v Quinn, 234 AD2d 520, 521-522). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — RPTL.) Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.