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Velez v. ABC Auto & Glass

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


September 15, 2009

NITZA VELEZ, RESPONDENT,
v.
ABC AUTO & GLASS, ET AL., DEFENDANTS, JOHN ROSATTI, APPELLANT.

In an action to recover damages for personal injuries, the defendant John Rosatti appeals from so much of an order of the Supreme Court, Kings County (Miller, J.), dated July 24, 2008, as granted the plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve the summons and complaint upon him.

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.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, RANDALL T. ENG & L. PRISCILLA HALL, JJ.

(Index No. 25635/05)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's cross motion is denied.

Under the facts of this case, the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross motion pursuant to CPLR 306-b to extend the time within which to serve the summons and complaint upon the defendant John Rosatti. Notwithstanding the expiration of the statute of limitations, the plaintiff did not demonstrate facts and circumstances that would support the grant of such relief in the interest of justice (see Crystal v Lisnow, 56 AD3d 713; Otero v Flushing Hosp., 300 AD2d 639, 640; Rihal v Kirchhoff, 291 AD2d 548).

The appellant's remaining contention is not properly before this Court (see Katz v Katz, 68 AD2d 536, 542-543).

RIVERA, J.P., DILLON, COVELLO, ENG and HALL, JJ., concur.

20090915

© 1992-2009 VersusLaw Inc.



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