| Navarrete v Metro PCS |
| 2016 NY Slip Op 02337 [137 AD3d 1230] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| Mirna Navarrete, Appellant, v Metro PCS,Defendant, and Rave PCS of Bay Ridge 142, Respondent. |
Dario Albert Metz & Eyerman, LLC, New York, NY (Ronald A. Dario ofcounsel), for appellant.
James J. Toomey, New York, NY (Evy L. Kazansky of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Rothenberg, J.), dated November 20, 2014,which denied her motion to vacate an order of the same court dated June 19, 2014,granting the motion of the defendant Rave PCS of Bay Ridge 142 pursuant to CPLR306-b to dismiss the complaint insofar as asserted against it and denied her cross motionpursuant to CPLR 306-b to extend her time to serve the defendants with process, uponher failure to appear at oral argument.
Ordered that the order dated November 20, 2014 is affirmed, with costs.
To vacate the order dated June 19, 2014, which was entered upon the plaintiff'sfailure to appear at oral argument, the plaintiff was required to demonstrate a reasonableexcuse for her default and a potentially meritorious opposition to the respondent's motion(see CPLR 5015 [a] [1]; Kramarenko v New York Community Hosp., 134 AD3d770 [2015]; Brinson vPod, 129 AD3d 1005, 1008 [2015]; Cohen v Romanoff, 83 AD3d 989 [2011]). Even if theplaintiff's failure to appear at oral argument in opposition to the respondent's motion andin support of her own cross motion was due to excusable law office failure (seeCPLR 2005; Brinson v Pod,129 AD3d 1005 [2015]; Rocco v Family Foot Ctr., 94 AD3d 1077, 1079 [2012]; Simpson v Tommy Hilfiger U.S.A.,Inc., 48 AD3d 389, 392 [2008]; Parker v City of New York, 272 AD2d310, 311 [2000]), the plaintiff failed to demonstrate that she had a potentially meritoriousopposition to the respondent's motion to dismiss the complaint insofar as asserted againstit. It is undisputed that the plaintiff made no attempt to effect service within 120 daysafter filing the summons and complaint, which was necessary to establish good causeunder CPLR 306-b (seeDeLorenzo v Gabbino Pizza Corp., 83 AD3d 992, 993 [2011]; Valentin v Zaltsman, 39 AD3d852 [2007]; Riccio vGhulam, 29 AD3d 558, 560 [2006]; Winter v Irizarry, 300 AD2d 472,473 [2002]).
Moreover, the plaintiff failed to demonstrate that an extension of time was warrantedin the interest of justice, since she exhibited an extreme lack of diligence in commencingthe action, which was not commenced until the day of the expiration of the statute oflimitations, failed to seek an extension of time until more than 2