| Bahadur v New York State Dept. of Correctional Servs. |
| 2011 NY Slip Op 06989 [88 AD3d 629] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Gayatri Bahadur, Individually and as Administratrix of the Estate ofPhillip Kedaru, Deceased, Appellant, v New York State Department of CorrectionalServices et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Alison J. Nathan and Laura R.Johnson of counsel), for respondents.
In an action, inter alia, to recover damages for violations of civil rights pursuant to 42 USC§ 1983 and wrongful death, etc., the plaintiff appeals, as limited by her brief, from so muchof an order of the Supreme Court, Queens County (Agate, J.), entered July 26, 2010, as grantedthat branch of the motion of the defendants Acting Deputy Superintendent A. Labriola,Lieutenant Gregory Lawrence, Correction Officer Masca, and Correction Officer SergeantTamori which was pursuant to CPLR 306-b, in effect, to dismiss the amended complaint insofaras asserted against the defendants Acting Deputy Superintendent A. Labriola and LieutenantGregory Lawrence, granted that branch of the same motion which was pursuant to CPLR 3211(a) (2) to dismiss the causes of action to recover damages for wrongful death under New YorkState law insofar as asserted against the defendants Correction Officer Masca and CorrectionOfficer Sergeant Tamori, and denied her cross motion, among other things, pursuant to CPLR306-b, inter alia, to extend the time to serve the summons and amended complaint on thedefendants Superintendent Kenneth Pearlman, Acting Deputy Superintendent A. Labriola, andLieutenant Gregory Lawrence.
Ordered that the order is affirmed insofar as appealed from, with costs.
Under the circumstances of this case, the Supreme Court providently exercised its discretionin denying the plaintiff's cross motion, inter alia, pursuant to CPLR 306-b, among other things, toextend her time to serve the summons and amended complaint on the defendants SuperintendentKenneth Pearlman, Acting Deputy Superintendent A. Labriola, and Lieutenant [*2]Gregory Lawrence, and properly granted that branch of the motionof the defendants Acting Deputy Superintendent A. Labriola, Lieutenant Gregory Lawrence,Correction Officer Masca, and Correction Officer Sergeant Tamori (hereinafter collectively thedefendants) which was pursuant to CPLR 306-b, in effect, to dismiss the amended complaintinsofar as asserted against Labriola and Lawrence (see Leader v Maroney, Ponzini &Spencer, 97 NY2d 95, 105-106 [2001]). It is undisputed that the plaintiff failed todemonstrate reasonable diligence in attempting service, which was necessary to establish goodcause under CPLR 306-b (id. at 104-105; see Bumpus v New York City Tr. Auth., 66 AD3d 26, 36 [2009]).Moreover, the plaintiff failed to establish that an extension of time was warranted in the interestof justice, since she exhibited an extreme lack of diligence in attempting to effect service, madeonly a single unsuccessful effort to effect service two days prior to the expiration of the 120-dayperiod of CPLR 306-b, failed to seek an extension of time until nearly two months after thedefendants had moved to dismiss for lack of timely service, and did not make any additionalshowing beyond her attorney-verified amended complaint in support of the merits of her causesof action (see Khodeeva v Chi ChungYip, 84 AD3d 1030 [2011]; Calloway v Wells, 79 AD3d 786, 787 [2010]; Varon v Maimonides Med. Ctr., 67AD3d 779, 779-780 [2009]; Shea vBloomberg, L.P., 65 AD3d 579, 580 [2009]; Valentin v Zaltsman, 39 AD3d 852 [2007]; Ortiz v Malik, 35 AD3d 560[2006]).
The Supreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (2) to dismiss the causes of action to recover damages for wrongfuldeath under New York State law (see EPTL 5-4.1) insofar as asserted against thedefendants Correction Officer Masca and Correction Officer Sergeant Tamori. Pursuant toCorrection Law § 24, any claim against an officer of the Department of CorrectionalServices "arising out of any act done or the failure to perform any act within the scope of theemployment and in the discharge of the duties" of said officer "shall be brought and maintainedin the court of claims as a claim against the state" (Correction Law § 24 [1], [2]). Theplaintiff's contention that the causes of action to recover damages for wrongful death under NewYork State law should be deemed an extension of her federal claims, inter alia, pursuant to 42USC § 1983 and, therefore, protected from dismissal under the Supremacy Clause of theUnited States Constitution, is without merit (cf. Haywood v Drown, 556 US —,129 S Ct 2108 [2009]). Angiolillo, J.P., Hall, Austin and Cohen, JJ., concur. [Prior CaseHistory: 2010 NY Slip Op 32221(U).]