Ballard v Greenblatt & Winslow, P.C.
2004 NY Slip Op 08512 [12 AD3d 1159]
November 19, 2004
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 19, 2005
Ronald Ballard v Greenblatt & Winslow, P.C.
Ronald Ballard, Appellant, v Greenblatt & Winslow, P.C., Respondent.
Appeal from an order of the Supreme Court, Oneida County (Robert F. Julian, J.), entered April 3, 2003 in an action to recover damages for legal malpractice. The order granted defendant's motion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was never properly commenced. "It is well established that under the commencement by filing system, 'service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced' " (Sangiacomo v County of Albany, 302 AD2d 769, 770 , quoting Matter of Gershel v Porr, 89 NY2d 327, 330 ). Present—Green, J.P., Gorski, Martoche, Lawton and Hayes, JJ.