
    Lumberman’s Mutual Casualty Company, on Behalf of Deborah Cervone, Appellant, v Temco Service Industries, Respondent.
    [618 NYS2d 722]
   —Order, Supreme Court, New York County (Joan Lobis, J.), entered April 23, 1993, which denied plaintiffs motion to serve a supplemental summons and complaint and granted defendant’s cross-motion to dismiss the action, unanimously affirmed, with costs.

The IAS Court properly found that plaintiff subrogee is not entitled to amend its complaint. The action was initially commenced in Civil Court where the purchase of an index number and filing of the summons with proof of service is mandatory (CCA 409; 22 NYCRR 208.4; see, Chalfonte Realty Corp. v Streator, Inc., 142 Misc 2d 501). Thus, plaintiffs sole remedy was to apply for an order, nunc pro tunc, in Civil Court for a late filing of proof of service (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, CCA 409, at 145). Since, defendant had not waived its right to assert the defense of statute of limitations and since it is undisputed that the applicable statute of limitations has expired, should plaintiff seek the aforementioned remedy in Civil Court, defendant would then assert the affirmative defense and the action would be dismissed. Concur—Asch, J. P., Rubin, Nardelli and Tom, JJ.  