Opinion
February 26, 1998
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
The October 18, 1996 order dismissing the first article 78 proceeding by reason of petitioners' failure timely to file proof of service in the office of the County Clerk pursuant to CPLR 306-b (a) was superfluous because CPLR 306-b (a) is self-executing ( see, Black v. Randall Med. Offs., 237 A.D.2d 110; Long v. Quinn, 234 A.D.2d 522; Matter of Barsalow v. City of Troy, 208 A.D.2d 1144, 1145). Accordingly, the proceeding was dismissed by operation of law on July 29, 1996, 15 days after the applicable four-month Statute of Limitations had expired ( see, CPLR 306-b [a]).
Although petitioners did not commence their second, identical article 78 proceeding within 15 days after the automatic dismissal of the first proceeding, in accordance with CPLR 306-b (b), application of the six-month extension provided pursuant to CPLR 205 (a) nonetheless renders petitioners' commencement of the second proceeding, on or about October 28, 1996, timely ( see, Matter of Winston v. Freshwater Wetlands Appeals Bd., 224 A.D.2d 160; Magovern v. Cherry Val. Realty Corp., 166 Misc.2d 75, affd 231 A.D.2d 690). We note in this connection that petitioners have met all of the conditions upon which the applicability of CPLR 205 (a) is premised: the prior proceeding was timely commenced and was not terminated by reason of voluntary discontinuance or neglect to prosecute; nor was the prior proceeding terminated in a final judgment upon the merits. Having properly commenced the second, identical proceeding, and having done so within six months after the first proceeding was dismissed, petitioners were entitled to the ameliorative benefits of CPLR 205 (a).
Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ. [See, 172 Misc.2d 994.]