
    [620 NYS2d 728]
    Rosa Daviu, Plaintiff, v R.C. Audobon Car Service, Inc., et al., Defendants.
    Supreme Court, Bronx County,
    November 7, 1994
    APPEARANCES OF COUNSEL
    
      Raymond B. Schwartzberg, New York City (David S. Steigbigel of counsel), for plaintiff.
   OPINION OF THE COURT

Alan J. Saks, J.

Motion by plaintiff for a default judgment against R.C. Audobon Car Service, Inc. is denied because there was improperly attached to the summons and complaint a document demanding discovery and inspection (D&I notice) of applicable insurance policies. While CPLR 3120 permits service of a D&I notice "after commencement of an action”, it does not permit such service simultaneously with commencement of an action. The service of a D&I notice on lay people who have not yet had the opportunity to consult counsel may well add to the confusion engendered by receipt of a summons and complaint.

In the instant case, that potential for causing additional confusion is compounded by these facts: (1) The summons and complaint and the D&I notice attached were both dated August 9, 1993; (2) The action was commenced by filing on August 10, 1993; (3) The D&I notice required production of the documents listed at plaintiffs counsel’s office on "7-19-93”; (4) The above papers were purportedly served on a "John Doe” managing agent on November 13, 1993, i.e., four months after the return date of the D&I notice.

In summary, service with the pleadings of a D&I notice that is returnable not merely before the expiration of defendant’s time to interpose an answer to the complaint but, indeed, at a time that has already passed strikes this court as so unfair as to nullify the service of the summons and complaint.

This action is dismissed sua sponte with leave to recommence.  