This is a mortgage foreclosure action in which defendant, Yisroel Sprung, ("Sprung") on April 26, 1999 allegedly defaulted under the terms of the mortgage and, plaintiff then accelerated the mortgage payments.

Background

The original summons and complaint was filed on June 19, 2000.

On October 15, 2004 this Court summarily denied the motion by Sprung to dismiss the complaint for lack of personal jurisdiction.

On October 17, 2006 the Appellate Division reversed the court's summary denial of Sprung's motion and remitted the matter, "to the Supreme Court, Kings County, for a hearing on the issue of whether personal jurisdiction was obtained over the defendant Yisroel Sprung".

The issue of personal jurisdiction over Sprung was,on September 18, 2007, referred to a Judicial Hearing Officer to hear and determine. Referee Miriam Sunshine on May 23, 2008, after a traverse hearing, determined that:

"service of process of the summon and complaint was never

made upon Yisroel Sprung and therefore personal jurisdiction

over Yisroel Sprung was never obtained".

On February 10, 2006, plaintiff's motion to serve a supplemental summons and amended complaint was granted. The supplemental summons and amended complaint added 1321-41 Realty Corp. ("Realty Corp.") as a defendant. The supplemental summons and amended complaint was filed on February 21, 2006. Realty Corp was served with the supplemental summons and amended complaint on February 24, 2006.

On February 27, 2006, Sprung was served with the supplemental summons and amended complaint. This marked the first time that Sprung was properly served.

Plaintiff moves for summary judgment in its foreclosure action.

Sprung cross moves for an Order dismissing the action on the ground that the summons and complaint was not served with 120 days as required by [*2]

CPLR 306-b and, on the ground that the action was not commenced within the six year Statute of Limitations (CPLR 3211(a)5) (CPLR 213(4)).

Realty Corp. cross moves to dismiss the amended complaint pursuant to CPLR 3211(a)(5) on the grounds that the action against Realty Corp. was not commenced within the six year Statute of Limitations (CPLR 213(4)).

Discussion

Section 306-b of the CPLR states:

"Service of the summons and complaint, summons with notice,

third-party summons and complaint, or petition with a notice of

petition or order to show cause shall be made within one hundred

twenty days after the filing of the summons and complaint, summons

with notice, third-party summons and complaint, or petition... if

service is not made upon a defendant within the time provided in this

section, the court, upon motion, shall dismiss the action without

prejudice as to that defendant, or upon good cause shown or in the

interest of justice, extend the time for service."

It is undisputed that this action was commenced on June 19, 2000. Pursuant to CPLR 306-b the last day to serve the summons and complaint was on October 19, 2000.

The statute clearly provides that the original summons and complaint which commenced the action must be served within 120 days after its filing.

CPLR 306-b cannot be satisfied by having a later supplemental summons and amended complaint served within 120 days of the filing of the said supplemental summons and amended complaint. (Page v Marusich, 30 A.D.3d 871, [3d Dept 2006]) The statute mandates the acquiring of personal jurisdiction over a defendant within 120 days of the commencement of the action. Only if the amended complaint is served within this time frame is the service valid against a defendant named in the original complaint.

Plaintiff's proper service of the supplemental summons and amended complaint on Sprung, which occurred on February 27, 2006, six years after the commencement of the action, failed to comply with CPLR 306-b. In addition, since the six year Statute of Limitations (CPLR 213(4)) expired on April 26, 2005, this action is time barred. (Bonanno v City of Rye, 280 A.D. 631,[2d Dept 2001]).

Accordingly, Sprung's cross motion is granted and the amended complaint is dismissed.

Plaintiff concedes that Realty Corp. was served after the expiration of the [*3]applicable Statute of Limitations, but argues that the,"relation back" doctrine applies and, accordingly, service relates back to the earlier service on Sprung. However, because Sprung was never properly served on the earlier dates, the relation back doctrine does not apply (Reuter v Haag, 224 AD2d 603,604 (2d Dept [1996])

Accordingly, Realty Corp.'s cross motion is granted and the amended complaint is dismissed.

Plaintiff's motion for summary judgment is denied as moot in view of the court's decision herewith.

Conclusion

In sum, Sprung and Realty Corp.'s cross motions for summary judgment dismissing the amended complaint are granted. Plaintiff's motion for summary judgment is denied.

This constitutes the decision and order of the court.

______________________

J.S.C.