| Rivera v Ostad |
| 2007 NYSlipOp 01623 |
| February 27, 2007 |
| Appellate Division, First Department |
| Felicita Rivera, Respondent, v David Ostad, M.D., et al., Defendants, and Cosmetic Surgery Center of New York, Appellant. |
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Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 21, 2005, which denied appellant's motion to dismiss the complaint and granted plaintiff's cross motion for an order extending the 120-day period in which to serve appellant and to deem the second service on appellant timely, unanimously affirmed, without costs.
Appellant did in fact receive a complaint, retain counsel and serve an answer with five affirmative defenses. As the motion court held, proper service was effected only 42 days after the end of the statutory 120-day period (CPLR 306-b). The court providently exercised its discretion, in the interest of justice, in granting plaintiff an extension of time to serve the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Concur—Saxe, J.P., Nardelli, Buckley, Gonzalez and Sweeny, JJ.