| Shea v Bloomberg, L.P. |
| 2009 NY Slip Op 06172 [65 AD3d 579] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Timothy Shea, Respondent, v Bloomberg, L.P., et al.,Defendants, and Unlimited Visibility, Inc., Appellant. |
—[*1] Ferro, Kuba, Mangano, Skylar, P.C., New York, N.Y. (Kenneth E. Mangano and George J.Parisi of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Unlimited Visibility,Inc., appeals (1) from an order of the Supreme Court, Kings County (Rothenberg, J.), dated April9, 2008, which denied that branch of its motion, in effect, pursuant to CPLR 3211 (a) (8) whichwas to dismiss the complaint insofar as asserted against it and granted the plaintiff's cross motionpursuant to CPLR 306-b to extend his time to serve a summons and complaint, and (2), aslimited by its brief, from so much of an order of the same court (Lewis, J.), dated October 10,2008, as denied its motion pursuant to CPLR 503 (a) and 511 to change the venue of the actionfrom Kings County to Orange County.
Ordered that the order dated April 9, 2008 is reversed, on the facts and in the exercise ofdiscretion, that branch of the appellant's motion, in effect, pursuant to CPLR 3211 (a) (8) whichwas to dismiss the complaint insofar as asserted against it is granted, and the plaintiff's crossmotion pursuant to CPLR 306-b to extend his time to serve the summons and complaint isdenied; and it is further,
Ordered that the order dated October 10, 2008 is modified, on the law, by deleting theprovision thereof denying the appellant's motion pursuant to CPLR 503 (a) and 511 to changethe venue of the action from Kings County to Orange County, and substituting therefor aprovision denying the motion as academic; as so modified, the order is affirmed insofar asappealed from; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The Supreme Court improvidently exercised its discretion in denying that branch of theappellant's motion, in effect, pursuant to CPLR 3211 (a) (8) which was to dismiss the complaintinsofar as asserted against it and in granting, in the interest of justice, the plaintiff's cross motionpursuant to CPLR 306-b to extend his time to serve the appellant (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105 [2001]). The appellant established that it was notserved with a summons and complaint. The plaintiff failed to use due diligence in serving thesummons and complaint and did not seek an extension of time to serve until after a motion todismiss was brought (see Garcia vSimonovsky, 62 AD3d 655, 656 [2009]; Valentin v Zaltsman, 39 AD3d 852 [2007]; see generallyBumpus v New York City Tr. Auth., 66 AD3d 26 [2009]).
In light of our determination, the appellant's motion pursuant to CPLR 503 (a) and 511 tochange the venue of the action from Kings County to Orange County must be denied asacademic. Santucci, J.P., Covello, Leventhal and Belen, JJ., concur.