## Facts

- Carmela Tamburo alleged she was injured on April 29, 1966, on P & C Food Markets, Inc.’s premises.
- The negligence claim was subject to a three-year statute of limitations expiring April 29, 1969.
- On April 29, 1969, Tamburo delivered a summons to the Cayuga County Sheriff for service on P & C.
- The summons caption omitted the court and county where the action was brought, contrary to CPLR 2101(c).
- The sheriff served the defective summons on April 29, 1969; P & C did not appear.
- After the limitations period expired, Tamburo delivered a supplemental summons on June 19, 1969, properly designating “Supreme Court, Cayuga County,” which was served on June 20, 1969.
- P & C appeared, received the complaint, and answered asserting a statute-of-limitations defense.

## Issues

1. Whether a summons served on the last day of the limitations period that omits the court and county is jurisdictionally void such that it does not commence the action.
2. Whether a plaintiff may amend a jurisdictionally void summons nunc pro tunc, after the statute of limitations has run, to treat the action as timely commenced.
3. Whether a defendant’s failure to respond to or return a defective summons waives the jurisdictional defect.

## Decision

- The Appellate Division, Fourth Department reversed the order denying dismissal and dismissed the complaint.
- The court held the April 29, 1969 summons was jurisdictionally void because it failed to name the court and county.
- Service of the void summons was a nullity and did not commence the action or toll the statute of limitations.
- The later supplemental summons, though proper in form, was served after the limitations period expired and could not relate back to the void service.
- The defect was not waived by P & C’s inaction before appearing; jurisdictional defects may be raised when the defendant appears and asserts defenses.

## Legal Principles

- A summons must state the court and county in which the action is brought; omission of this information is a jurisdictional defect rendering the summons void.
- A jurisdictionally void summons does not commence an action for statute-of-limitations purposes.
- Liberal amendment rules do not permit nunc pro tunc amendment of void process to avoid a limitations bar; there is no valid process to amend.
- A party does not waive a jurisdictional defect in process merely by failing to respond prior to appearance.

## Conclusion

Because the original summons was void for failure to designate the court and county, the action was not timely commenced, and the properly captioned supplemental summons served after the limitations period could not revive the claim; the complaint was dismissed as time-barred.


Tamburo v. P & C Food Mkts., Inc., 36 A.D.2d 1017, 321 N.Y.S.2d 487 (N.Y. App. Div. 4th Dep’t 1971)