| Matter of Richards v Office of the N.Y. State Comptroller |
| 2011 NY Slip Op 06971 [88 AD3d 1049] |
| October 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of James A. Richards, Appellant, v Office ofthe New York State Comptroller et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), forrespondents.
Garry, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered November 22,2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, grantedrespondents' motion to dismiss the petition.
Petitioner, a firefighter, was injured in a work-related incident on January 2, 2002. Petitionerfirst reported the incident to his employer on February 22, 2002. In January 2005, petitioner filedan application for performance of duty disability retirement benefits relating to the January 2002incident. Finding that petitioner failed to provide notice of the incident in accordance withRetirement and Social Security Law § 363-c, the Comptroller denied the application.Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 seeking review ofthe Comptroller's determination. Respondents moved to dismiss the petition based uponpetitioner's failure to timely serve them, and petitioner cross-moved pursuant to CPLR 306-b foran extension of time to serve. Supreme Court granted respondents' motion and dismissed thepetition. Petitioner now appeals.
CPLR 306-b provides that, where proper service has not been made, a court may extend thetime for service in the interest of justice (see CPLR 306-b; Dujany v Gould, 63 AD3d 1496,[*2]1497 [2009]). Whether to grant an extension of the time toserve rests within the sound discretion of the trial court and, absent an abuse of that discretion,we will not disturb the court's decision (see Leader v Maroney, Ponzini & Spencer, 97NY2d 95, 101 [2001]; Della Villa v Kwiatkowski, 293 AD2d 886, 887 [2002]). SupremeCourt undertook a "careful judicial analysis of the factual setting of the case and a balancing ofthe competing interests presented by the parties" (Leader v Maroney, Ponzini & Spencer,97 NY2d at 105) and dismissed the petition after finding that petitioner failed to demonstrate thathis claims are meritorious, or that he was diligent in his efforts to serve respondents or topromptly request an extension to do so (see Dujany v Gould, 63 AD3d at 1498). Theunderlying issue involves the Comptroller's interpretation of a regulation (see Matter of Meyers v New York StateDiv. of Hous. & Community Renewal, 68 AD3d 1518, 1519 [2009], lv denied14 NY3d 714 [2010]; Matter of Skyline Specialty v Gargano, 294 AD2d 742, 743[2002]), and we find no abuse of discretion by Supreme Court (see Maiuri v Pearlstein, 53 AD3d816, 816-817 [2008]; Della Villa v Kwiatkowski, 293 AD2d at 887).
Peters, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs. [Prior Case History: 2010 NY Slip Op 33190(U).]