| Lehman v North Greenwich Landscaping, LLC |
| 2009 NY Slip Op 06808 [65 AD3d 1293] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Myra Lehman, Respondent, v North GreenwichLandscaping, LLC, Respondent, and Horton School Associates,Appellant. |
—[*1] Arthur Paul Condon II, Rye, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Horton SchoolAssociates appeals from (1) an order of the Supreme Court, Westchester County (Nicolai, J.),entered May 9, 2008, which denied its motion pursuant to CPLR 3211 (a) (5) and (8) to dismissthe complaint and all cross claims insofar as asserted against it for lack of personal jurisdictionand as time-barred, and (2) an order of the same court entered August 29, 2008, which denied itsmotion for leave to reargue.
Ordered that the order entered May 9, 2008 is reversed, on the law, and the appellant'smotion pursuant to CPLR 3211 (a) (5) and (8) to dismiss the complaint and all cross claimsinsofar as asserted against it is granted; and it is further,
Ordered that the appeal from the order entered August 29, 2008 is dismissed, as no appeallies from an order denying leave to reargue; and it is further,
Ordered that one bill of costs is awarded to the appellant.
On February 26, 2003 the plaintiff allegedly slipped and fell on a patch of ice in a parking loton property owned by the defendant Horton School Associates (hereinafter Horton). Horton hadretained the defendant North Greenwich Landscaping, LLC (hereinafter North Greenwich), toprovide snow removal services at the premises. On February 22, 2006, three days prior to theexpiration of the statute of limitations (see CPLR 214), the plaintiff commenced thisaction against Horton and North Greenwich by filing a summons and complaint in theWestchester County Clerk's office. It appears that North Greenwich was served before theexpiration of the 120-day period provided for by CPLR 306-b; Horton, however, was not.
On November 28, 2007, more than one year and nine months after the action wascommenced, the plaintiff made an oral application, in effect, pursuant to CPLR 311 (b) to permither [*2]to serve the summons and complaint on Greater NewYork Mutual Insurance Company, the insurance carrier for Horton, claiming, inter alia, thatHorton had been dissolved and there were no records regarding Horton with the Department ofState. The Supreme Court, Westchester County (Liebowitz, J.), granted the plaintiff's applicationfrom the bench, directed substituted service, and so-ordered the transcript. On December 6, 2007and December 13, 2007 the plaintiff mailed Horton's insurer copies of the summons andcomplaint and the so-ordered transcript. Horton served an answer with cross claim dated January17, 2008, interposing, among others, the affirmative defenses of lack of personal jurisdiction andthe statute of limitations.
By notice dated March 10, 2008, Horton moved pursuant to CPLR 3211 (a) (5) and (8) todismiss the complaint and all cross claims insofar as asserted against it, contending that theSupreme Court did not have personal jurisdiction over it because the plaintiff had failed totimely effect service upon it within the 120-day period provided for by CPLR 306-b, and theapplicable statute of limitations had run. By order entered May 9, 2008, the Supreme Courtdenied the motion on the ground that, as a court of coordinate jurisdiction, it was bound by theorder permitting substituted service.
The Supreme Court erred in concluding that the doctrine of law of the case precluded thegranting of Horton's motion to dismiss. The doctrine of law of the case "applies only to legaldeterminations that were necessarily resolved on the merits in [a] prior decision" (Baldasanov Bank of N.Y., 199 AD2d 184, 185 [1993]; see Gay v Farella, 5 AD3d 540, 541[2004]; D'Amato v Access Mfg., 305 AD2d 447, 448 [2003]). Here, the Court's priororder granting the plaintiff's motion to permit substituted service pursuant to CPLR 311 (b), didnot address the merits of the parties' current arguments, i.e., that the plaintiff failed to effectservice upon Horton within the 120-day period required by CPLR 306-b and that the statute oflimitations has expired (see D'Amato v Access Mfg., 305 AD2d 447 [2003]; Perron vHendrickson/Scalamandre/Posillico [TV], 292 AD2d 361, 362 [2002]).
In any event, "the doctrine of law of the case is not binding upon an appellate court"(Wynkoop v County of Nassau, 139 AD2d 731, 732 [1988]; see Donahue v NassauCounty Healthcare Corp., 15 AD3d 332, 333 [2005]). It is undisputed that the plaintiff failedto comply with CPLR 306-b as she failed to effect service upon Horton within the 120-dayperiod allowed by that statute (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95,101 [2001]; Riccio v Ghulam, 29 AD3d 558, 560 [2006]). Moreover, the plaintiff did notcross-move pursuant to CPLR 306-b for leave to extend the time within which to serve Horton,and did not demonstrate facts that would support the grant of such relief (see Velez v ABCAuto & Glass, 65 AD3d 1138 [2009]; Crystal v Lisnow, 56 AD3d 713 [2008];Riccio v Ghulam, 29 AD3d 558 [2006]; Matter of Saltzman v Board of Appeals ofVil. of Roslyn, 26 AD3d 505 [2006]). Since Horton was not timely served and the statute oflimitations has expired, the Supreme Court should have granted Horton's motion which was todismiss the complaint and all cross claims insofar as asserted against it pursuant to CPLR 3211(a) (5) and (8) for lack of personal jurisdiction and as time-barred. Rivera, J.P., Eng, Chambersand Hall, JJ., concur.