DeLorenzo v Gabbino Pizza Corp.

2011 NY Slip Op 03539 [83 AD3d 992]

April 26, 2011

Appellate Division, Second Department

As corrected through Wednesday, June 8, 2011

Madeline DeLorenzo, Appellant, v Gabbino Pizza Corp.,Respondent.

—[*1]Lawrence D. Engle, Purchase, N.Y., for appellant.

Thomas K. Moore, White Plains, N.Y. (Gary M. Bell of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Colabella, J.), entered April 29, 2010, which, inter alia,granted the defendant's motion to dismiss the complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, with costs.

On October 16, 2006, the plaintiff allegedly was injured when she slipped and fell on aslippery substance in a pizzeria owned by the defendant. In January 2009, the plaintiffcommenced this action by filing a summons and complaint with the Westchester County Clerk.

It is undisputed that the plaintiff failed to comply with CPLR 306-b, as she failed to effectservice upon the defendant within the 120-day period allowed by that statute (see Leader vMaroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]; Calloway v Wells, 79 AD3d 786 [2010]; Bumpus v New York City Tr. Auth.,66 AD3d 26 [2009]). To the extent that the plaintiff attempted to informally seek leave toeffect late service of the original summons and complaint upon the defendant pursuant to CPLR306-b, that affirmative relief should have been sought in a notice of cross motion to the SupremeCourt (see Rinaldi v Rochford, 77AD3d 720 [2010]) and, in any event, the plaintiff did not demonstrate the existence of factsthat would support the granting of such relief (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006];Calloway v Wells, 79 AD3d at 787; Redman v South Is. Orthopaedic Group, P.C., 78 AD3d 1147[2010], lv denied 16 NY3d 707 [2011]; Rinaldi v Rochford, 77 AD3d at 720).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion to dismiss thecomplaint pursuant to CPLR 306-b. Skelos, J.P., Eng, Austin and Cohen, JJ., concur.