| Matter of Mobilevision Med. Imaging Servs., LLC v Sinai Diagnostic &Interventional Radiology, P.C. |
| 2009 NY Slip Op 07259 [66 AD3d 685] |
| October 6, 2009 |
| Appellate Division, Second Department |
| In the Matter of Mobilevision Medical Imaging Services, LLC,Respondent, v Sinai Diagnostic & Interventional Radiology, P.C.,Appellant. |
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In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, SinaiDiagnostic & Interventional Radiology, P.C., appeals from a judgment of the Supreme Court,Kings County (F. Rivera, J.), entered July 18, 2008, which, upon an order of the same courtdated November 9, 2007, inter alia, granting the petitioner an extension of time pursuant toCPLR 306-b within which to effect proper service of the notice of petition and petition, and uponan order of the same court dated January 4, 2008, inter alia, granting that branch of its crossmotion pursuant to CPLR 3211 (a) (3) which was to dismiss the petition only to the extent ofstaying the proceeding for 45 days to permit the petitioner to comply with Limited LiabilityCompany Law § 808 (a), and denying that branch of its cross motion which was to dismissthe petition pursuant to CPLR 3211 (a) (8), is in favor of the petitioner and against it in the sumof $152,625.41.
Ordered that the judgment is affirmed, with costs.
Contrary to the contention of Sinai Diagnostic & Interventional Radiology, P.C. (hereinafterSinai), the Supreme Court providently exercised its discretion in granting the petitioner anextension of time pursuant to CPLR 306-b within which to effect proper service upon Sinai. Aconsideration of the relevant factors, as revealed in the record, supported the extension (see e.g. Rosenzweig v 600 N. St., LLC,35 AD3d 705 [2006]; Robles vMirzakhmedov, 34 AD3d 554 [2006]; Estey-Dorsa v Chavez, 27 AD3d 277 [2006]; Simonovskaya vOlivo, 304 AD2d 553 [2003]; Seon Uk Lee v Corso, 300 AD2d 385 [2002]).
Similarly, Sinai's contention that the notices of petition served by the petitioner werejurisdictionally defective under CPLR 403 (a), and that dismissal of the petition was thereforewarranted pursuant to CPLR 3211 (a) (8), is without merit. The notices adequately advised Sinaiof the time when and place where the petition to confirm the arbitration award would bereturnable (see e.g. Matter of NationalGypsum Co., Inc. v Assessor of Town of Tonawanda, 4 NY3d 680 [2005]).
Furthermore, the Supreme Court properly stayed the proceeding for 45 days to afford thepetitioner an opportunity to comply with Limited Liability Company Law § 808 (a), ratherthan [*2]dismissing the proceeding outright. Relevant case lawregarding Business Corporation Law § 1312 (a), an analog of Limited Liability CompanyLaw § 808 (a), supports the petitioner's contention that, under the circumstances presented,it was entitled to a reasonable opportunity to cure its noncompliance with the statute beforedismissal of the proceeding should be considered (see Showcase Limousine v Carey, 269AD2d 133 [2000]; Uribe v Merchants Bank of N.Y., 266 AD2d 21 [1999];Tri-Terminal Corp. v CITC Indus., 78 AD2d 609 [1980]).
The parties' remaining contentions are either not properly before us on this appeal or withoutmerit. Mastro, J.P., Santucci, Chambers and Lott, JJ., concur.