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Justice Tolub Click here to see Judicial Profile http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=119926 PLAINTIFF moved for leave to reargue a prior court decision and, upon reargument, an order reversing the portion that vacated the default judgment against co-defendant Tobin in June 1993 and dismissed the action against her for failure to comply with the provisions of now-repealed CPLR 306-b. The court granted reargument. Plaintiff sought to re-address the issue of service of process under the then-newly enacted rules of commencement by filing and the pre-1998 requirement that within 120 days of filing initiatory papers and paying a fee plaintiff had to serve defendant and file proof of service with the clerk of court. Plaintiff began the action on Nov. 19, 1992, by notice of motion for summary judgment in lieu of complaint by purchasing an index number and obtained a request for judicial intervention. The court noted plaintiff’s original motion papers were only accompanied by an affidavit of service for Tobin, as same for co-defendant Kilcullen was not filed until after the 120-day period expired. Plaintiff argued the court erred when it arrived at the same conclusion regarding proof of service on Tobin. The court agreed. It found the affidavit of service was timely filed, vacated the prior decision regarding service on Tobin and reinstated the 1993 judgment against Tobin.

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