
    (October 13, 1998)
    A & A Felsky Realty Corp., Appellant, v F.A.B. Construction Corp., Respondent.
    [678 NYS2d 291]
   In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated September 24, 1997, which, after an inquest on the issue of damages upon the defendant’s default in appearing, declined to enter judgment in its favor on the ground that the action hád been dismissed by operation of CPLR former 306-b (a). The appeal brings up for review so much of an order of the same court, dated October 20, 1997, as, in effect, upon granting reargument, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated September 24, 1997, is dismissed, as that order was superseded by the order dated October 20, 1997, made upon reargument; and it is further,

Ordered that the order dated October 20, 1997, is reversed insofar as reviewed, the order dated September 24, 1997, is vacated, and the matter is remitted to the Supreme Court, Rockland County, for the entry of an appropriate judgment; and it is further,

Ordered that the appellant is awarded one bill of costs.

Upon the defendant’s default in appearing, the court conducted an inquest on August 15, 1997. However, the court declined to enter judgment in favor of the plaintiff, on the ground that there was no affidavit of service of the summons and complaint in the County Clerk’s file, and that, therefore, the action had been dismissed by operation of law pursuant to CPLR former 306-b (a) prior to the date of the inquest. We conclude that the plaintiff presented sufficient proof of its compliance with the 120-day filing requirement under CPLR former 306-b (a). Accordingly, the matter is remitted to the Supreme Court, Rockland County, for the entry of an appropriate judgment. Rosenblatt, J. P., O’Brien, Altman and Friedmann, JJ., concur.  