| Posada v Pelaez |
| 2007 NYSlipOp 00735 |
| February 1, 2007 |
| Appellate Division, First Department |
| Margarita Posada, Appellant, v Oscar Pelaez, M.D., et al., Respondents, et al., Defendants. |
—[*1] Bower Sanger & Lawrence, P.C., New York (Anne Marie Tormay of counsel), for Farhad Naseh, M.D., respondent.
Order, Supreme Court, New York County (Joan B. Carey, J.), entered on or about August 12, 2005, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to file her affidavit of service of process against defendant Naseh late or nunc pro tunc and her cross motion for an extension of time to effect such service, and granted Naseh's cross motion to dismiss the action against him on the ground that he was not properly served with process, unanimously affirmed, without costs.
Plaintiff failed to serve Dr. Naseh within the required 120-day period after filing (CPLR 306-b), and did not move for an extension of time to serve until faced with a motion to dismiss, approximately seven months after the 120-day period had expired, and more than three years after the cause of action had accrued. Moreover, plaintiff failed to demonstrate that her action had merit. In view of such lack of diligence and the long delay in notifying Naseh of this action, which caused him substantial prejudice, an extension of time to serve was unwarranted, and [*2]dismissal was appropriate (Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Ekbatani v Rockefeller Ctr. Props., 30 AD3d 347 [2006]). Concur—Tom, J.P., Andrias, Friedman, Catterson and Kavanagh, JJ.