| Umana v Sofola |
| 2017 NY Slip Op 03216 [149 AD3d 1138] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| Yanira Umana, as Administrator of the Estate of Kimberly T.Umana, Deceased, et al., Respondents, v Adeola Sofola, M.D., et al., Defendants, andNyack Hospital, Appellant. |
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci andI. Elie Herman of counsel), for appellant.
Darren Jay Epstein, P.C., New City, NY, for respondents.
In an action, inter alia, to recover damages for wrongful death, the defendant Nyack Hospitalappeals, as limited by its brief, from so much of an order of the Supreme Court, RocklandCounty (Walsh II, J.), dated October 5, 2015, as denied that branch of its motion which waspursuant to CPLR 3211 (a) (8) and 306-b to dismiss the complaint insofar as asserted against itfor lack of personal jurisdiction, and granted that branch of the plaintiffs' cross application whichwas pursuant to CPLR 306-b to extend the time to serve the summons and complaint uponit.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asgranted that branch of the plaintiffs' cross application which was pursuant to CPLR 306-b toextend the time to serve the summons and complaint upon the defendant Nyack Hospital isdeemed to be an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant Nyack Hospital which was pursuant to CPLR 3211 (a) (8)and 306-b to dismiss the complaint insofar as asserted against it for lack of personal jurisdictionis granted, and that branch of the plaintiffs' cross application which was pursuant to CPLR 306-bto extend the time to serve the summons and complaint upon the defendant Nyack Hospital isdenied.
The branch of the motion of the defendant Nyack Hospital (hereinafter the defendant) whichwas pursuant to CPLR 3211 (a) (8) and 306-b to dismiss the complaint insofar as asserted againstit for lack of personal jurisdiction should have been granted, since it is undisputed that serviceupon the defendant was not made within 120 days after the filing of the summons and complaint(see CPLR 306-b; Brown vSanders, 142 AD3d 940 [2016]).
The branch of the plaintiffs' cross application which was pursuant to CPLR 306-b to extendthe time to serve the summons and complaint on the defendant should have been denied. [*2]The plaintiffs were required to show either good cause for theirfailure to serve the defendant with the summons and complaint within 120 days after the filing orthat an extension of time to effect service should be granted in the interest of justice (seeLeader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107 [2001]). The plaintiffsfailed to show good cause, since their proof was insufficient to substantiate their attorney's claimthat the process server had attempted to serve the defendant within 120 days after the filing of thesummons and complaint (see Ambrosiov Simonovsky, 62 AD3d 634 [2009]; Valentin v Zaltsman, 39 AD3d 852 [2007]; Riccio v Ghulam, 29 AD3d 558,560 [2006]).
Furthermore, the plaintiffs failed to establish their entitlement to an extension of time forservice of the summons and complaint in the interest of justice, since they exhibited an extremelack of diligence in attempting to effect service (see Bahadur v New York State Dept. of Correctional Servs., 88 AD3d629, 630 [2011]; Varon vMaimonides Med. Ctr., 67 AD3d 779 [2009]), failed to demonstrate a reasonable excusefor the failure to effect timely service (see Johnson v Concourse Vil., Inc., 69 AD3d 410 [2010];Riccio v Ghulam, 29 AD3d at 560; Wilkins v Burgess, 25 AD3d 794, 795 [2006]), failed to seek anextension of time until after the defendant's motion to dismiss was made (see Valentin v Zaltsman, 39 AD3d852 [2007]; Riccio v Ghulam, 29 AD3d at 560), and failed to demonstrate apotentially meritorious cause of action (see Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605, 607[2015]; Henig v Good Samaritan Med. Ctr., 301 AD2d 571 [2003]; Leadbeater vBeaubrun, 299 AD2d 458, 459 [2002]). Accordingly, the Supreme Court should havegranted that branch of the defendant's motion which was to dismiss the complaint insofar asasserted against it, and denied that branch of the plaintiffs' cross application which was for leaveto extend the time to serve the summons and complaint upon the defendant. Leventhal, J.P.,Sgroi, Hinds-Radix and LaSalle, JJ., concur.