| Johnson v Concourse Vil., Inc. |
| 2010 NY Slip Op 00010 [69 AD3d 410] |
| January 5, 2010 |
| Appellate Division, First Department |
| Shirley Johnson, Appellant, v Concourse Village, Inc., etal., Respondents. |
—[*1]
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 11, 2008,which, in an action for personal injuries, granted defendants' motions to dismiss the complaint,and denied plaintiff's cross motion for an extension of time to serve the complaint pursuant toCPLR 306-b, unanimously affirmed, without costs.
Although plaintiff's counsel served her pleadings just one day after the applicable 120-dayservice period expired (see CPLR 306-b), and counsel offered proof that he attempted toarrange for service with eight days remaining out of the 120-day period, he nonetheless failed toshow diligence in his efforts to effect service, particularly as the three-year statute of limitations(CPLR 214 [5]) had already expired, and he did not follow up with the process server regardingcompletion of service until after the 120-day service period had expired. There was no evidenceto indicate that the corporate defendants could not be located, or that they could not be readilyserved through the Secretary of State. Furthermore, counsel waited until after defendants movedto dismiss before he cross-moved for an extension of the time to serve some several months later.Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support ofher extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95[2001]).
Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. Thecircumstances presented, including that the statute of limitations expired, plaintiff's lack ofdiligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit,the vague allegations of injury, the lack of notice given of the claim for more than three yearsand three months, the prejudice to defendants and the several month delay in moving for anextension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4NY3d 816 [2005]; Posada vPelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).Concur—Tom, J.P., Andrias, McGuire and Manzanet-Daniels, JJ.