| Moulden v White |
| 2007 NY Slip Op 09305 [45 AD3d 1495] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Rachelle Moulden, Appellant, v Ronald White, as RegionalDirector of New York State Division of Parole, Defendant, and Richard I. Low, as AreaSupervisor of New York State Division of Parole, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter B. Sullivan of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredMarch 2, 2006. The order denied plaintiff's motion to extend the time in which to serve thesummons and complaint and granted the motion of defendants Richard I. Low, Area Supervisor,New York State Division of Parole, Paul Moritz, Senior Parole Officer, New York State Divisionof Parole, Richard Mata, Senior Parole Officer, New York State Division of Parole, Paul Saviola,Parole Officer, New York State Division of Parole, Richard Trzyna, Parole Officer, New YorkState Division of Parole, and Walter Root, Parole Officer, New York State Division of Parole, todismiss the complaint against them.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for violations of herconstitutional rights and intentional infliction of emotional distress arising out of an incident inwhich four employees of the New York State Division of Parole (Division) executed an arrestwarrant upon her husband, conducted a search of the residence of plaintiff and her husband, andseized a number of photographs therefrom. Plaintiff failed to serve the summons and complainton any of the named defendants within the 120-day period after filing the summons andcomplaint with the Erie County Clerk on October 5, 2001, as required by CPLR 306-b. OnFebruary 5, 2002, one day after the 120-day period had expired, plaintiff served seven copies of[*2]the summons and complaint on the Division's offices inBuffalo. After more than three years, plaintiff moved for a default judgment againstdefendants-respondents (defendants) based on their failure to answer the complaint or otherwiseto appear in the action, whereupon defendants moved to dismiss the complaint against thembased on plaintiff's failure to comply with CPLR 306-b. Five months later, before Supreme Courthad decided the respective motions of plaintiff and defendants, plaintiff moved to extend the timein which to serve the summons and complaint.
The court properly granted the motion of defendants and dismissed the complaint againstthem in view of plaintiff's extreme lack of diligence. Indeed, plaintiff's failure to move for adefault judgment against defendants within one year of their alleged defaults by itself warranteddismissal of the complaint as abandoned (see CPLR 3215 [c]). In addition, the courtproperly determined that the multiple law office failures could not serve as a basis for grantingplaintiff an extension of time in which to serve defendants "in the interest of justice" pursuant toCPLR 306-b (cf. Slate v SchiavoneConstr. Co., 4 NY3d 816 [2005]; see generally Leader v Maroney, Ponzini &Spencer, 97 NY2d 95, 105-106 [2001]).
We reject plaintiff's further contention that defendant Ronald White, Regional Director of theDivision, who appeared in the action, is united in interest with defendants (see CPLR 203[b]). White was not present during the arrest of plaintiff's husband, and plaintiff alleged that hefailed to provide defendants with proper supervision. "[W]here defendants can be heldindividually responsible or where they can raise individual defenses which will not necessarilyaffect a codefendant, then the defendants are not united in interest" (Trane Co. v RobinsonConstr., 61 AD2d 360, 364 [1978]). Present—Hurlbutt, J.P., Centra, Lunn, Fahey andPine, JJ.