& Silber, P.C., New York, NY (Andrew B. Kaufman, David H.
Larkin, and Patrick Mevs of counsel), for appellant.
Samuels & Associates, P.C., Rosedale, NY (Violet E.
Samuels of counsel), for respondent.
C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the defendant Ali Al-Attar appeals from so much
of an order of the Supreme Court, Kings County (Bunyan, J.),
dated July 2, 2014, as granted the plaintiff's motion
pursuant to CPLR 306(b) for an extension of time to serve a
summons with notice on him, and denied his cross motion
pursuant to CPLR 306-b and 3211(a)(8) to dismiss the
complaint insofar as asserted against him for failure to
timely serve a summons with notice on him.
that the order is reversed insofar as appealed from, on the
facts and in the exercise of discretion, with costs, the
plaintiff's motion for an extension of time is denied,
and the defendant Ali Al-Attar's cross motion to dismiss
the complaint insofar as asserted against him is granted.
plaintiff commenced this action to recover damages for
medical malpractice by summons with notice filed April 26,
2013. A process server attempted to serve the summons on the
defendant Ali Al-Attar (hereinafter the appellant) on July
31, 2013. The summons was returned, with the server noting
that the appellant had moved. The plaintiff made no further
attempt to serve the appellant. On January 8, 2014, the
plaintiff moved to extend her time to serve the summons with
on the appellant. The plaintiff attached a copy of the
complaint to the motion. The appellant cross-moved to dismiss
the complaint insofar as asserted against him due to the
plaintiff's failure to timely serve the summons with
notice on him.
order dated July 2, 2014, the Supreme Court granted the
plaintiff's motion and denied the appellant's cross
motion. The court also granted the motion of the other
defendants in the action to dismiss the complaint insofar as
asserted against them, on the ground that the plaintiff
failed to timely serve them with a complaint.
Supreme Court improvidently exercised its discretion in
granting the plaintiff's motion for an extension of time
and in denying the appellant's cross motion to dismiss
the complaint insofar as asserted against him. The plaintiff
concedes that she did not timely serve the appellant with the
summons with notice. Thus, in order to establish that she was
entitled to an extension of time to effect such service, the
plaintiff was required to show either good cause for failing
to timely serve the appellant or that an extension of time
should be granted in the interest of justice (see
CPLR 306-b; Riccio v Ghulam, 29 A.D.3d 558, 560).
"To establish the requisite good cause, reasonable
diligence in attempting service must be shown, but the
interest of justice is a broader standard, which does not
require a showing of good cause, and permits the court to
consider many factors" (Spath v Zack, 36 A.D.3d
410, 413; see CPLR 306-b). These factors include
"diligence, or lack thereof, along with any other
relevant factor... including expiration of the Statute of
Limitations, the meritorious nature of the cause of action,
the length of delay in service, the promptness of a
plaintiff's request for the extension of time, and
prejudice to defendant" (Leader v Maroney, Ponzini
& Spencer, 97 N.Y.2d 95, 105-106).
the plaintiff failed to demonstrate that she was entitled to
an extension of time to serve the appellant for good cause,
as she failed to establish that she exercised reasonably
diligent efforts in attempting to effect proper service
(see Hobbins v North Star Orthopedics, PLLC, 148
A.D.3d 784). Not only did the plaintiff fail to make any
further attempts to serve the appellant after her first
attempt was unsuccessful, as the summons was returned to her,
but her complaint insofar as asserted against the other
defendants was dismissed because she failed to timely serve
them with a complaint. Further, the plaintiff failed to
establish her entitlement to an extension of time for service
in the interest of justice, as she exhibited an extreme lack
of diligence in attempting to effect proper service, waited
almost five months after the expiration of the 120-day period
in which she was required to serve the appellant to move for
the extension of time, and failed to demonstrate a
potentially meritorious cause of action (see Umana v
Sofolo, ___ A.D.3d ___, ___, 2017 NY Slip Op 03216, *3
[2d Dept 2017] ; Valentin v Zaltsman, 39 A.D.3d 852,
the Supreme Court should have denied the plaintiff's
motion and ...