| Przespolewski v ElderWood Health Care at Linwood |
| 2008 NY Slip Op 07367 [55 AD3d 1327] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Lorraine Przespolewski, as Administrator of the Estate of Stella Gonciarz,Deceased, Respondent, v ElderWood Health Care at Linwood et al., Appellants, et al.,Defendants. |
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Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered June 26,2007 in a medical malpractice action. The order denied the motion of defendants ElderWood HealthCare at Linwood and Linwood Health Care Center, Inc. seeking to vacate a prior order grantingplaintiff's ex parte motion pursuant to CPLR 306-b and to dismiss the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendants ElderWood Health Care at Linwood (incorrectly sued as ElderWoodHealth Care at Lindwood) and Linwood Health Care Center, Inc. (Linwood defendants) appeal froman order that denied their motion seeking to vacate the order granting plaintiff's ex parte motionpursuant to CPLR 306-b to extend the time in which to serve them and to dismiss the complaint forfailure to obtain personal jurisdiction over them in a proper manner. We affirm. We conclude under thecircumstances of this case that Supreme Court providently exercised its discretion in granting plaintiff'sex parte motion in the interest of justice (seeBrown v Wilson Farms, Inc., 52 AD3d 1324 [2008]; Bertucci v Mosey, 45 AD3d 1385, 1386-1387 [2007]; Abu-Aqlein v El-Jamal, 44 AD3d 884[2007]; see generally Busler v Corbett, 259 AD2d 13, 15-17 [1999]). Plaintiff established thatthe action was commenced within the statute of limitations and that service was effectuated on severalof the other defendants within the statutory time frame. In addition, plaintiff established that she soughtan extension of time in which to serve the Linwood defendants promptly after discovering that, becauseof a miscommunication, the Linwood defendants had not been served within the 120-day statutoryperiod. Significantly, the Linwood defendants failed to demonstrate that they were prejudiced by thedelay in service (see Brown, 52 AD3d 1324 [2008]). We thus also conclude that the courtproperly denied that part of the motion of the Linwood defendants to dismiss the complaint against thembased on the alleged failure to obtain personal jurisdiction over them. Present—Martoche, J.P.,Smith, Lunn, Pine and Gorski, JJ.