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Shelkowitz v. Rainess

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

HAVA SHELKOWITZ, PLAINTIFF-APPELLANT,
v.
ERROL RAINESS, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Leland G. DeGrasse, J.), entered July 18, 2007, which, insofar as appealed from as limited by the briefs in an action for personal injuries allegedly sustained in a slip and fall on an accumulation of snow and ice in front of defendant's building, granted defendant's cross motion to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Tom, Buckley, Moskowitz, Renwick, JJ.

114418/05

Dismissal of the complaint was proper where plaintiff did not effect service of the summons and complaint upon defendant within 120 days after the filing of the action (CPLR 306-b). Nor is an extension of time for service warranted in the "interest of justice" (id.). The request for an extension of time was not made until opposition to defendant's cross motion to dismiss, which was approximately 20 months after the filing of the action (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367 [2007]). Furthermore, contrary to plaintiff's contention, CPLR 207 is not applicable as there is no evidence that defendant was either absent from the state within the meaning of the statute, or that he was listed under a false name.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081218

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