| Crystal v Lisnow |
| 2008 NY Slip Op 09345 [56 AD3d 713] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Raquel Crystal, Appellant, v Jeffrey Lisnow,Respondent. |
—[*1] Kay & Gray, Westbury, N.Y. (Leigh A. Panek of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (Maltese, J.), dated March 5, 2008, which denied hermotion pursuant to CPLR 306-b for an extension of time in which to serve process upon thedefendant, or in the alternative, pursuant to CPLR 3211 to dismiss the affirmative defense of lackof personal jurisdiction, and granted the defendant's motion, in effect, pursuant to CPLR 3211 (a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
The plaintiff commenced the instant action by filing a summons and complaint just a fewdays prior to the expiration of the statute of limitations. The summons and complaint were servedupon the defendant by "nail and mail" service (see CPLR 308 [4]) after the statute oflimitations had expired. However, as the Supreme Court correctly found, this service wasineffective as the plaintiff failed to exercise the requisite due diligence in first attempting to servethe defendant pursuant to CPLR 308 (1) or (2) (see Moran v Harting, 212 AD2d 517, 518[1995]; Walker v Manning, 209 AD2d 691, 692 [1994]; McNeely v Harrison,208 AD2d 909, 910 [1994]).
Moreover, under the facts of this case, the Supreme Court did not improvidently exercise itsdiscretion in declining to extend the plaintiff's time to serve the summons and complaint pursuantto CPLR 306-b. Notwithstanding the expiration of the statute of limitations, the plaintiff did notdemonstrate facts and circumstances that would support the grant of such relief in the interests of[*2]justice (see Otero v Flushing Hosp., 300 AD2d 639,640 [2002]; Rihal v Kirchhoff, 291 AD2d 548 [2002]). Skelos, J.P., Dillon, Carni andLeventhal, JJ., concur.