Crystal v. Lisnow
Decision Date | 25 November 2008 |
Docket Number | 2008-02898 |
Citation | 2008 NY Slip Op 09345,868 N.Y.S.2d 269,56 A.D.3d 713 |
Parties | RAQUEL CRYSTAL, Appellant, v. JEFFREY LISNOW, Respondent. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The plaintiff commenced the instant action by filing a summons and complaint just a few days prior to the expiration of the statute of limitations. The summons and complaint were served upon the defendant by "nail and mail" service (see CPLR 308 [4]) after the statute of limitations had expired. However, as the Supreme Court correctly found, this service was ineffective as the plaintiff failed to exercise the requisite due diligence in first attempting to serve the defendant pursuant to CPLR 308 (1) or (2) (see Moran v Harting, 212 AD2d 517, 518 [1995]; Walker v Manning, 209 AD2d 691, 692 [1994]; McNeely v Harrison, 208 AD2d 909, 910 [1994]).
Moreover, under the facts of this case, the Supreme Court did not improvidently exercise its discretion in declining to extend the plaintiff's time to serve the summons and complaint pursuant to CPLR 306-b. 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 interests of justice (see Otero v Flushing Hosp., 300 AD2d 639, 640 [2002]; Rihal v Kirchhoff, 291 AD2d 548 [2002]).
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