Khodeeva v. Yip

• Court: New York Supreme Court — Appellate Division
• Citation: Khodeeva v. Yip, 84 A.D.3d 1030, 922 N.Y.S.2d 807, 2011 N.Y. Slip Op. 4209 (N.Y. App. Div. 2011)
• Decision Date: 17 May 2011
• Parties: Assol F. KHODEEVA, et al., appellants,v.CHI CHUNG YIP, et al., respondents.

84 A.D.3d 1030

922 N.Y.S.2d 807

2011 N.Y. Slip Op. 04209

Assol F. KHODEEVA, et al., appellants,

v.CHI CHUNG YIP, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.

OPINION TEXT STARTS HEREBukh & Associates, PLLC, Brooklyn, N.Y. (Arkady Bukh of counsel), for appellants.Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock and Mayu Miyashita of counsel), for respondents.

[922 N.Y.S.2d 808 , 84 A.D.3d 1030]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Fusco, J.), dated April 21, 2010, which, upon a decision (D'Oca, R.) dated March 30, 2010, granted the defendants' motion to dismiss the complaint for lack of personal jurisdiction, and denied the plaintiffs' motion pursuant to CPLR 306–b for an extension of time to serve the summons and complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion to dismiss the complaint for lack of personal jurisdiction since, at a hearing to determine the validity of service of process, the plaintiffs failed to establish by a preponderance of evidence that service was proper ( see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d 1074, 1075, 899 N.Y.S.2d 269; Forrester v. Luisa, 52 A.D.3d 324, 859 N.Y.S.2d 645; see also De Zego v. Donald F. Bruhn, M.D., P.C., 67 N.Y.2d 875, 501 N.Y.S.2d 801, 492 N.E.2d 1217).

The Supreme Court also providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 306–b for an extension of time to serve the summons and complaint ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291, 761 N.E.2d 1018). The plaintiffs failed to establish that good cause existed to extend the time for service ( see Colon v. Bailey, 26 A.D.3d 454, 455, 810 N.Y.S.2d 511; Wilkins v. Burgess, 25 A.D.3d 794, 807 N.Y.S.2d 574; see also Ortiz v. Malik, 35 A.D.3d 560, 824 N.Y.S.2d 736; Alexander v. Alexander, 32 A.D.3d 524, 819 N.Y.S.2d 834). The plaintiffs also failed to establish that an extension of time was warranted in the interest of justice since they “exhibited a lack of diligence in commencing the action ... until the statute of limitations had nearly expired ( see Ortiz v. Malik, 35 A.D.3d 560, 824 N.Y.S.2d 736) ... did not seek an extension of time to serve the defendant[s] until after a motion to dismiss had been brought by the defendant[s,] despite having been served with the defendant [s'] answer, which raised the lack of personal jurisdiction as an affirmative defense ( see Varon v. Maimonides Med. Ctr., 67 A.D.3d 779, 779–780, 888 N.Y.S.2d 177; Shea v. Bloomberg, L.P., 65 A.D.3d 579, 580, 883 N.Y.S.2d 712; Garcia v. Simonovsky, 62 A.D.3d 655, 656, 877 N.Y.S.2d 692), and ... failed to establish [a] potentially meritorious cause of action ( see ...