| Khodeeva v Chi Chung Yip |
| 2011 NY Slip Op 04209 [84 AD3d 1030] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Assol F. Khodeeva et al., Appellants, v Chi Chung Yip etal., Respondents. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock and Mayu Miyashita ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Richmond County (Fusco, J.), dated April 21, 2010, which, upon adecision (D'Oca, R.) dated March 30, 2010, granted the defendants' motion to dismiss thecomplaint for lack of personal jurisdiction, and denied the plaintiffs' motion pursuant to CPLR306-b for an extension of time to serve the summons and complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion to dismiss the complaint for lackof personal jurisdiction since, at a hearing to determine the validity of service of process, theplaintiffs failed to establish by a preponderance of evidence that service was proper (see Deutsche Bank Natl. Trust Co. vPestano, 71 AD3d 1074, 1075 [2010]; Forrester v Luisa, 52 AD3d 324 [2008]; see also De Zego vDonald F. Bruhn, M. D., P. C., 67 NY2d 875 [1986]).
The Supreme Court also providently exercised its discretion in denying the plaintiff's motionpursuant to CPLR 306-b for an extension of time to serve the summons and complaint (seeLeader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). The plaintiffs failed to establishthat good cause existed to extend the time for service (see Colon v Bailey, 26 AD3d 454, 455 [2006]; Wilkins v Burgess, 25 AD3d 794[2006]; see also Ortiz v Malik, 35AD3d 560 [2006]; Alexander vAlexander, 32 AD3d 524 [2006]). The plaintiffs also failed to establish that anextension of time was warranted in the interest of justice since they "exhibited a lack of diligencein commencing the action . . . until the statute of limitations had nearly expired (see Ortiz v Malik, 35 AD3d 560[2006]) . . . did not seek an extension of time to serve the defendant[s] until after amotion to dismiss had been brought by the defendant[s,] despite having been served with thedefendant[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. . . failed to establish [a] potentially meritorious cause of action (see Garcia v Simonovsky, 62 AD3d655, 656 [2009]; Ortiz v Malik,35 AD3d 560 [2006]; Wilkins vBurgess, 25 AD3d 794 [2006]; Kazimierski v New York Univ., 18 AD3d 820 [2005])" (Calloway v Wells, 79 AD3d 786,787 [2010]).[*2]
The plaintiffs' remaining contentions are without merit.Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur.