Donna Dempsey et al., Respondents, v. St. Clare's Hospital and Health Center, Defendant, and Avram M. Cooperman, Appellant

Donna Dempsey et al., Respondents, v St. Clare’s Hospital and Health Center, Defendant, and Avram M. Cooperman, Appellant. [675 NYS2d 863] [MAJORITY] —Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about May 4, 1997, which, insofar as appealed from, denied defendant-appellant’s motion to dismiss the action as against him as time-barred, unanimously affirmed, without costs. The plain language of CPLR former 306-b (b) does not support defendant’s claim that fraudulent proof of service in the first action (a finding made by the Special Referee but not adopted as the reason for dismissing the first action) precluded plaintiffs from bringing this second action after the Statute of Limitations had expired. The allegedly fraudulent affidavit of service conferred no benefit on plaintiffs in terms of extending the Statute of Limitations, since they could have recommenced the action under the former statute even if they had not filed any proof of service at all. Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.