Plaintiff Adolphe M. Elusma ("Elusma") commenced this personal injury action by the purchase of an index number on September 30, 2004 against defendant Firegoodwish Co., LLC., ("Firegoodwish"). Service of the pleadings was accomplished by delivery of the summons and complaint to the Secretary of State on October 13, 2004.

The defendant Firegoodwish failed to appear. However, no action was taken concerning the default by the plaintiff as Elusma failed to file for a default judgment within the one-year period as required by CPLR §3215(c). Plaintiff has offered no explanation for the failure to comply with § 3215(c).

On December 4, 2006, plaintiff filed a supplemental summons and complaint, without leave of court, naming in addition to Firegoodwish, an additional defendant, Malek Management, LLC (Malek). Plaintiff failed to obtain leave of the Court to add an additional party and there is no stipulation between the parties consenting to the addition of Malek. Plaintiff offers no explanation for adding Malek without leave of Court in contravention of CPLR §1003. [*2]

Defendant Firegoodwish and Malek were served with the supplemental summons and amended complaint on January 3, 2007 and in December 2006, respectively. Plaintiff served the supplemental summons utilizing the same index number purchased on September 20, 2004.

Plaintiff offers no explanation as to why, in apparent contravention of the requirements of CPLR

§306-b, service was effectuated outside the 120- day period required by said section. Malek

interposed an answer on December 28, 2006 and asserted the following affirmative defenses:

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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

8. The supplemental summons and amended complaint was not served

within the time constraints prescribed by the C.P.L.R. and is defective as

a matter of law.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

9. Service of the supplemental summons and amended complaint was

not made pursuant to the dictates of the C.P.L.R. and is jurisdictionally

defective.

Plaintiff by motion dated October 19, 2007 now moves for a default judgment against Firegoodwish. Defendants cross-move to dismiss the supplemental summons and complaint against Malek on the grounds it was served in contravention of CPLR §1003 and against Firegoodwish on the grounds that no default was taken within the time prescribed by CPLR

§3215(c). In addition, both defendants assert the additional basis for dismissal in that the supplemental summons was served outside the 120- day period as required by CPLR §306-b.

There are a number of reasons why the complaint must be dismissed.

CPLR §1003 authorizes parties to be added to an action at any stage of the action by

leave of court or by stipulation of all parties who have appeared, or once without leave of court

within twenty days after service of the original summons or at any time before the period for responding to that summons expires or within twenty days after service of a pleading responding

to it. After the expiration of such time, parties may be added only by leave of Court or by

stipulation of all parties having appeared.

Here, plaintiff, Elusma filed and served a supplemental summons on December 4, 2006,

without leave of Court and more than two years after Firegoodwish's time to answer the initial pleading had lapsed. Joinder of a new party without obtaining leave of court when CPLR § 1003

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so requires is a jurisdictional defect rendering the pleading a nullity. Perez v Paramount Communications, Inc., 92 NY2d 749, 83 (1999); Crook v E.I. DuPont De Nemours & Co., 81 NY2d 807 (1993), affirming 181 AD2d 1039 (4th Dept). However, a defendant's failure to timely object to such defect may constitute a waiver. Gross v BFH Co., 151 AD2d 452 (2d Dept 1989). Here defendant Malek preserved its objections to plaintiff's noncompliance with CPLR §1003 in [*3]its sixth affirmative defense.

Nor does the service of the supplemental summons and amended complaint serve as a basis to renew the period within which to take a default judgment as against defendant Firegoodwish. CPLR §3215(c) authorizes a one-year period within which a default judgment must be taken. The period to take a default expired on November 11, 2005 against Firegoodwish.

Finally, plaintiff has failed to set forth good cause as to why the supplemental summons was served in contravention of the time requirements imposed by CPLR §306-b. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 (2001), Estate of Jervis v Teachers Ins. & Annuity Assn., 279 AD2d 367 (2001)).

Accordingly, plaintiff's motion for a default judgment against defendant Firegoodwish is denied. Defendants' cross-motion to dismiss the complaint against Malek and Firegoodwish is granted. The Clerk of the Court is directed to enter judgment dismissing the complaint.

This constitutes the decision and order of the Court.

E N T E R,

____________________________________

ROBERT J. MILLER

Justice

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