Krasa v. Dial 7 Car & Limousine Serv., Inc.

• Decision Date: 01 February 2017
• Citation: 46 N.Y.S.3d 196,147 A.D.3d 744,2017 N.Y. Slip Op. 00637
• Parties: Nicole KRASA, respondent, v. DIAL 7 CAR & LIMOUSINE SERVICE, INC., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 744

46 N.Y.S.3d 196

2017 N.Y. Slip Op. 00637

Nicole KRASA, respondent,

v.DIAL 7 CAR & LIMOUSINE SERVICE, INC., et al., appellants, et al., defendants.

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

Feb. 1, 2017.

The Shanker Law Firm, P.C., New York, NY (Steven J. Shanker of counsel), for appellants.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for personal injuries, the defendants Dial 7 Car & Limousine Service, Inc., and Eitan Chandally appeal from an order of the Supreme Court, Queens County (Lane, J.), entered September 16, 2014, which denied their motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and granted the plaintiff's cross motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon them.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion of the defendants Dial 7 Car & Limousine Service, Inc., and Eitan Chandally pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction is granted, and the plaintiff's cross motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon those defendants is denied.

The motion of the defendants Dial 7 Car & Limousine Service, Inc., and Eitan Chandally (hereinafter together the defendants) pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction should have been granted. The defendants were not properly served by mail pursuant to CPLR 312–a, since it is undisputed that the plaintiff failed to send, inter alia, copies of acknowledgments of receipt in the form set forth in CPLR 312–a(d) to the defendants, and there is no evidence that any acknowledgment was completed and mailed or delivered to her attorney (see CPLR 312–a[b] ; Castillo v. JFK Medport, Inc., 116 A.D.3d 899, 900, 983 N.Y.S.2d 866 ; Klein v. Educational Loan Servicing, LLC, 71 A.D.3d 957, 958, 897 N.Y.S.2d 220 ; Bennett v. Acosta, 68 A.D.3d 910, 911, 890 N.Y.S.2d 330 ; Horseman Antiques, Inc. v. Huch, 50 A.D.3d 963, 964, 856 N.Y.S.2d 663 ). Furthermore, it is undisputed that service upon the defendants was not made within 120 days after the filing of the summons and complaint (see CPLR 306–b ; Brown v. Sanders, 142 A.D.3d 940, 37 N.Y.S.3d 444 ).

The plaintiff's cross motion pursuant to CPLR 306–b to extend the time to serve the summons and compliant upon the defendants should have been denied. The plaintiff failed to show good cause for her failure to serve the defendants, since she admittedly made no attempt to serve them within 120 days after the filing of the summons and complaint (see Ambrosio v. Simonovsky, 62 A.D.3d 634, 878 N.Y.S.2d 191 ; Valentin v. Zaltsman, 39 A.D.3d 852, 835 N.Y.S.2d 298 ; Riccio v. Ghulam, 29 A.D.3d 558, 560, 815 N.Y.S.2d 125 ). Furthermore, the plaintiff failed to establish that an extension of time was warranted in the interest of justice. The plaintiff exhibited an extreme lack of diligence in commencing the action, which was not commenced until one day before the expiration of the statute of limitations, made a single attempt to effect service two...