| Redman v South Is. Orthopaedic Group, P.C. |
| 2010 NY Slip Op 08920 [78 AD3d 1147] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Peter Redman, Respondent, v South Island OrthopaedicGroup, P.C. et al., Appellants. |
—[*1] Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the defendants appeal from anorder of the Supreme Court, Nassau County (Galasso, J.), entered January 7, 2010, which deniedtheir motion pursuant to CPLR 306-b to dismiss the complaint and granted the plaintiff's crossmotion pursuant to CPLR 306-b to extend the time for service of the summons and complaintnunc pro tunc.
Ordered that the order is reversed, on the law, with costs, the defendants' motion pursuant toCPLR 306-b to dismiss the complaint is granted and the plaintiff's cross motion pursuant toCPLR 306-b to extend the time for service of the summons and complaint nunc pro tunc isdenied.
In opposition to the defendants' motion pursuant to CPLR 306-b to dismiss the complaint andin support of the plaintiff's cross motion pursuant to that statute to extend the time for service ofthe summons and complaint, the plaintiff was required to show either good cause for his failureto serve the defendants with the summons and complaint within 120 days after filing or that anextension of time to effect service should be granted in the interest of justice (see Leader vMaroney, Ponzini & Spencer, 97 NY2d 95, 104-107 [2001]; Riccio v Ghulam, 29AD3d 558, 560 [2006]). The plaintiff failed to demonstrate good cause as the unsubstantiatedexcuse regarding the process server's failure to serve the defendants was insufficient (seeLeader v Maroney, Ponzini & Spencer, 97 NY2d at 104-105; Wilkins v Burgess, 25AD3d 794, 795 [2006]).
The plaintiff also failed to establish his entitlement to an extension of time for service of thesummons and complaint in the interest of justice in view of the lack of diligence shown by theplaintiff (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]). The more thanone-year delay between the time the summons and complaint were filed and the time the crossmotion was made, the plaintiff's failure to cross-move until after the defendants moved to dismissthe complaint, the 2½-month delay between the expiration of the statute of limitations andthe defendants' receipt of notice of this action, and the prejudice to the defendants if an extensionwere to be granted, demonstrate that the plaintiff is not entitled to an [*2]extension in the interest of justice (see Slate v SchiavoneConstr. Co., 4 NY3d at 817; Ambrosio v Simonovsky, 62 AD3d 634 [2009];Riccio v Ghulam, 29 AD3d at 560; Wilkins v Burgess, 25 AD3d at 795;Liaros v City of New York, 14 AD3d 662, 663 [2005]; Leadbeater v Beaubrun,299 AD2d 458 [2002]; Ludemann v Maisel, 292 AD2d 428, 429 [2002]). Skelos, J.P.,Santucci, Angiolillo, Hall and Roman, JJ., concur.