| Eglit v County of Westchester |
| 2007 NY Slip Op 09551 [46 AD3d 504] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Robert A. Eglit, Sr., Appellant, v County of Westchester,Defendant, and Westchester Medical Center et al., Respondents. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner of counsel), forrespondents Westchester Medical Center, Westchester County Healthcare Corporation, andKaren Buckley. Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains, N.Y. (Wayne M. Rubinof counsel), for respondents Roger Salisbury and Robert Koch.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Westchester County (Nastasi, J.) dated September 5, 2006, which grantedthe motion of the defendants Westchester Medical Center, Westchester County HealthcareCorporation, and Karen Buckley, and the separate motion of the defendants Roger Salisbury andRobert Koch to dismiss the action insofar as asserted against them pursuant to CPLR 3012 (b),and denied his cross motion for leave to serve a late notice of claim pursuant to GeneralMunicipal Law § 50-e (5).
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
To avoid dismissal for failure to timely serve a complaint after demand therefor has beenserved pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for[*2]the delay in serving the complaint and a meritorious cause ofaction (see Tutora v Schirripa, 1AD3d 349 [2003]; Dunefsky v Petco Animal Supplies, 303 AD2d 620 [2003];Balgley v Cammarata, 299 AD2d 432 [2002]). The plaintiff failed to meet either of theserequirements. Accordingly, the Supreme Court properly granted the respondents' motions todismiss the action insofar as asserted against them.
The plaintiff's failure to move for leave to serve a late notice of claim within the one year and90-day limitations period applicable to the claim against the defendants Westchester CountyMedical Center and Westchester County Healthcare Corporation deprived the court of authorityto permit late service on those defendants (see Pierson v City of New York, 56 NY2d950, 954-956 [1982]; Small v New YorkCity Tr. Auth., 14 AD3d 690, 691 [2005]; Santiago v City of New York, 294AD2d 483 [2002]; Spence v City of New York, 290 AD2d 501 [2002]).
The plaintiff's remaining contentions either are without merit or do not warrant reversal.Goldstein, J.P., Fisher, Carni and McCarthy, JJ., concur.