| Calloway v Wells |
| 2010 NY Slip Op 09206 [79 AD3d 786] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Wanda Calloway, Appellant, v Nakia Wells,Respondent. |
—[*1] DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief,from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), entered July 2,2009, as granted the defendant's motion pursuant to CPLR 3211 (a) (5) and (8) to dismiss thecomplaint and denied that branch of her cross motion which was, in effect, pursuant to CPLR 306-b toextend her time to serve the defendant with the summons and complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
Under the circumstances of this case, the Supreme Court providently exercised its discretion indenying that branch of the plaintiff's cross motion which was, in effect, pursuant to CPLR 306-b toextend her time to serve the defendant with the summons and complaint (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). The plaintiff failed to demonstrate reasonablediligence in attempting service, which was necessary to establish good cause under CPLR 306-b (97NY2d at 104-105; Bumpus v New YorkCity Tr. Auth., 66 AD3d 26 [2009]; Valentin v Zaltsman, 39 AD3d 852 [2007]; Kazimierski v New York Univ., 18 AD3d820 [2005]; see also Wilkins vBurgess, 25 AD3d 794 [2006]). Moreover, the plaintiff failed to establish that an extension oftime was warranted in the interest of justice, since she exhibited a lack of diligence in commencing theaction, as she waited until the statute of limitations had nearly expired (see Ortiz v Malik, 35 AD3d 560[2006]). In addition, she did not seek an extension of time to serve the defendant until after a motion todismiss had been brought by the defendant despite having been served with the defendant's answer,which raised the lack of personal jurisdiction as an affirmative defense (see Varon v Maimonides Med. Ctr., 67AD3d 779, 779-780 [2009]; Shea vBloomberg, L.P., 65 AD3d 579, 580 [2009]; Garcia v Simonovsky, 62 AD3d 655, 656 [2009]), and she failed toestablish that she had a potentially meritorious cause of action (see Garcia v Simonovsky, 62 AD3d 655 [2009]; Ortiz v Malik, 35 AD3d 560 [2006];Wilkins v Burgess, 25 AD3d 794[2006]; Kazimierski v New York Univ.,18 AD3d 820 [2005]).
In light of our determination, we need not reach the plaintiff's remaining contentions. Santucci, J.P.,Balkin, Leventhal and Austin, JJ., concur.