Gurnee v. Northern Radiology Associates, P.C.

Order unanimously affirmed without costs. Memorandum: Plaintiffs timely commenced this medical malpractice action by filing a summons and complaint on January 17, 1995. Plaintiffs were unable to effect personal service because Allen J. Ball, M.D. (defendant), had retired from the practice of medicine and moved from New York. They obtained an order allowing service upon defendant by publication. Anticipating that they would be unable to effect service within 120 days following filing of the summons and complaint, plaintiffs commenced a second action before the 120-day period had expired by…