| Hine v Bambara |
| 2009 NY Slip Op 07551 [66 AD3d 1192] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Charles E. Hine et al., Appellants, v Julie Ann Bambara et al.,Respondents. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Patricia M. Curtin of counsel), for JulieAnn Bambara and another, respondents. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Michelle M. Westerman of counsel), forUnited Health Services Hospitals, Inc. and another, respondents. Aswad & Ingraham, Binghamton (James F. Moran of counsel), for Isaac I. Matta,respondent.
Garry, J. Appeal from a judgment of the Supreme Court (Tait, J.), entered October 20, 2008in Tioga County, which, among other things, granted defendants' motions to dismiss thecomplaint.
This medical malpractice action arises out of allegedly negligent treatment and postoperativecare received by plaintiff Charles E. Hine in January and February 2005. Hine and his wife,derivatively, filed a summons with notice on July 10, 2007. On November 6, 2007, plaintiffsfiled a complaint and certificate of merit and mailed copies of the summons and complaint to theBroome County Sheriff for service. The summons with notice and complaint were served upondefendants Julie Ann Bambara and United Medical Associates, P.C. on November 13, 2007, andupon defendant Isaac I. Matta on November 16, 2007. Defendants United Health ServicesHospitals, Inc. and Wilson Memorial Regional Medical Center were served with the summonswith notice on November 14, 2007. Defendants moved to dismiss the action on the ground,among other things, that service was not completed within 120 days after the filing of thesummons with notice as required by CPLR 306-b and that no certificate of merit [*2]was served as required by CPLR 3012 (a). Plaintiffs cross-movedfor an extension of time to serve the summons and complaint. Supreme Court granteddefendants' motions and denied the cross motion. Plaintiffs now appeal.
CPLR 306-b provides that "[i]f service is not made upon a defendant within the [120-dayperiod] provided in this section, the court, upon motion, shall dismiss the action withoutprejudice . . . or upon good cause shown or in the interest of justice, extend the timefor service." Plaintiffs contend that Supreme Court abused its discretion in finding an insufficientbasis to extend the time for service in the interest of justice. Determining whether to grant anextension on this ground "requires a careful judicial analysis of the factual setting of the case anda balancing of the competing interests presented by the parties" (Leader v Maroney, Ponzini& Spencer, 97 NY2d 95, 105 [2001]). A plaintiff who seeks such an extension is notrequired to establish that diligent efforts to effect timely service were made, but diligence may beconsidered "along with any other relevant factor . . . including expiration of the[s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay inservice, the promptness of a plaintiff's request for the extension of time, and prejudice todefendant" (id. at 105-106; seeMatter of Palmateer v Greene County Indus. Dev. Agency, 38 AD3d 1087, 1089[2007]; Mead v Singleman, 24AD3d 1142, 1144-1145 [2005]). No single factor is conclusive (see Leader v Maroney,Ponzini & Spencer, 97 NY2d at 106), and the court's determination will not be overturnedabsent an abuse of discretion (see City of Albany v Wise, 298 AD2d 783, 784 [2002]).
Here, service was required to be made on defendants no later than November 7, 2007, 120days after the summons with notice was filed. The complaint was neither filed nor provided tothe Sheriff for service, however, until one day before the time expired, and defendants were notserved until seven to nine days thereafter. There is no indication that any earlier attempts atservice took place, nor has there been any explanation for the delay. Plaintiffs did not request anextension of time for service until May 2008, six months after the 120-day period expired andafter defendants had moved for dismissal (see id. at 784). Finally, the existence of ameritorious cause of action has not been established. In this regard, the redacted portion of areport attributed to an unidentified medical expert, submitted by plaintiffs with their crossmotion, was unsigned and unsworn and therefore lacked probative value (see Bright v McGowan, 63 AD3d1239, 1241 [2009]). Under these circumstances, despite the expiration of the statute oflimitations, we find no abuse of discretion in Supreme Court's determination (see CPLR306-b; Maiuri v Pearlstein, 53AD3d 816, 817 [2008]). Plaintiffs' additional contention that defendants waived theirobjections to untimely service has not been considered because it was not raised before SupremeCourt (see Singer Asset Fin. Co., LLC vScott, 38 AD3d 1120, 1121 [2007]; Dinneny v Allstate Ins. Co., 295 AD2d 797,799 [2002]).
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, with one bill of costs.