Cerrito v. Galioto

In an action to enforce a stipulation, the defendant appeals from an order of the Supreme Court, Queens County (LeVine, J.), entered April 27, 1994, which denied his motion to dismiss the action on the ground that the plaintiff failed to file proof of service.

Ordered that the order is affirmed, with costs.

*266According to CPLR 306-b (a), "[i]f proof of service is not filed and there has been no appearance by the defendant within [120 days after the date of filing of the summons and complaint] the action * * * shall be deemed dismissed as to the nonappearing party * * * without prejudice and…