| Garcia v Simonovsky |
| 2009 NY Slip Op 03691 [62 AD3d 655] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Lourdes Garcia, Appellant, v Boris Simonovsky,Respondent, et al., Defendant. |
—[*1] Abamont & Associates, Brooklyn, N.Y. (Thomas D. Leff of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated April 4, 2008, which granted the motion ofthe defendant Boris Simonovsky pursuant to CPLR 306-b to dismiss the complaint insofar asasserted against him and denied her cross motion pursuant to CPLR 306-b to extend her time toserve that defendant with the summons and complaint.
Ordered that the order is affirmed, with costs.
In opposition to the respondent's motion to dismiss the complaint pursuant to CPLR 306-band in support of the plaintiff's cross motion to extend her time to serve the summons andcomplaint pursuant to that statute, the plaintiff was required to show either good cause for herfailure to serve the respondent with the summons and complaint within 120 days after their filingor that an extension of time to effect service should be granted in the interest of justice (seeLeader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107 [2001]; Riccio v Ghulam, 29 AD3d 558,560 [2006]). The plaintiff failed to show good cause for her failure since she admittedly made noattempt to serve the respondent within 120 days after the filing of the summons and complaint(see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105; Valentin v Zaltsman, 39 AD3d852 [2007]; Riccio v Ghulam, 29 AD3d at 560).
Furthermore, the plaintiff failed to show that an extension of time to serve the defendant waswarranted in the interest of justice in view of the lack of diligence shown by the plaintiff,including [*2]the one-year delay between the time the summonsand complaint were filed and the time the cross motion to extend her time to serve the summonsand complaint was made, the 9½-month delay between the expiration of the statute oflimitations and the respondent's receipt of notice of the action, the failure to make any showingof merit, and the lack of an excuse for the failure to effect timely service (see Slate v Schiavone Constr. Co., 4NY3d 816, 817 [2005]; AmericanTel. & Tel. Co. v Schnabel Found. Co., 38 AD3d 580 [2007]; Ortiz v Malik, 35 AD3d 560,560-561 [2006]; Meusa v BMW Fin.Servs., 32 AD3d 830, 831 [2006]). Spolzino, J.P., Santucci, Angiolillo and Leventhal,JJ., concur.