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Esposito v. Isaac

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 8, 2009

LUISA C. ESPOSITO, PLAINTIFF-RESPONDENT,
v.
ALLEN H. ISAAC, ETC., DEFENDANT-APPELLANT, HARVEY GLADSTEIN, ETC., ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 9, 2008, which denied defendant Allen H. Isaac's motion to reject so much of a referee's report as found that plaintiff established grounds for an extension of time to serve the complaint, and confirmed the report in its entirety, unanimously reversed, on the law and the facts, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint as against 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.

Andrias, J.P., Saxe, Sweeny, Moskowitz, Abdus-Salaam, JJ.

109446/06

Plaintiff failed to satisfy the criteria for an extension of time to serve either upon good cause shown or in the interest of justice (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 103-104 [2001]). As to good cause, plaintiff failed to demonstrate diligence in effecting service (see Leader at 105). The referee found that the process server "at best, was sloppy, and at worst, was untruthful." And, having provided an incorrect address for defendant, plaintiff appears to have made insufficient efforts to locate the correct address.

As to the interest of justice standard, while plaintiff moved promptly for an extension of time in response to defendant's motion to dismiss, she failed to show either that her cause of action was meritorious or that there was no prejudice to defendant (see Leader at 105-106). There is no evidence that defendant had notice of the action at any time before the end of the 120-day period for making service (see Yardeni v Manhattan Eye, Ear & Throat Hosp., 9 AD3d 296, 297-298 [2004], lv denied 4 NY3d 704 [2005]). In light of the foregoing, the fact that the statute of limitations has expired does not warrant an extension (see Leader at 107; Okoh v Bunis, 48 AD3d 357 [2008]).

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

20091208

© 1992-2009 VersusLaw Inc.



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