Pinzon v. Ikea N.Y., LLC

• Decision Date: 18 May 2022
• Docket Number: 2019–12588,Index No. 607256/16
• Citation: 205 A.D.3d 942,166 N.Y.S.3d 586 (Mem)
• Parties: Gloria PINZON, appellant, v. IKEA NEW YORK, LLC, defendant third-party plaintiff-respondent; Excel Building Services, LLC, third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

205 A.D.3d 942

166 N.Y.S.3d 586 (Mem)

Gloria PINZON, appellant,

v. IKEA NEW YORK, LLC, defendant third-party plaintiff-respondent;Excel Building Services, LLC, third-party defendant-respondent.

2019–12588

Index No. 607256/16

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

Argued—March 14, 2022

May 18, 2022

Litman Law Firm, Woodbury, NY (Jeffrey E. Litman of counsel), for appellant.

Goldberg Segalla LLP, Buffalo, NY (Meghan M. Brown of counsel), for defendant third-party plaintiff-respondent.

Andrea G. Sawyers, Melville, NY (Jennifer M. Belk of counsel), for third-party defendant-respondent.

HECTOR D. LASALLE, P.J., MARK C. DILLON, SHERI S. ROMAN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anna R. Anzalone, J.), entered September 30, 2019. The order denied the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve the defendant with the summons and complaint.

ORDERED that the order is affirmed, with one bill of costs.

On September 21, 2013, the plaintiff allegedly slipped and fell inside a store owned and operated by the defendant. On September 20, 2016, the plaintiff commenced this action to recover damages for personal injuries allegedly resulting from the fall. In an order entered July 11, 2017, the Supreme Court denied the defendant's motion pursuant to CPLR 306–b to dismiss the complaint for lack of personal jurisdiction. In a decision and order dated July 11, 2018, this Court reversed the Supreme Court's order and granted the defendant's motion pursuant to CPLR 306–b to dismiss the complaint based on the plaintiff's failure to serve the summons and complaint upon the defendant within 120 days after the commencement of the action (see Pinzon v. IKEA N.Y., LLC, 163 A.D.3d 733, 80 N.Y.S.3d 416 ). More than a year later, by notice of motion dated August 9, 2019, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve the defendant with the summons and complaint in the interest of justice. The Supreme Court denied the motion, and the plaintiff appeals.

Contrary to the contentions of the defendant and the third-party defendant, the Supreme Court had jurisdiction to entertain the plaintiff's motion (see State of New York Mtge. Agency v. Braun, 182 A.D.3d 63, 69, 119 N.Y.S.3d 522 ). Nevertheless, the court providently exercised its discretion in denying the plaintiff's motion. The plaintiff exhibited a lack of diligence in attempting to effect service within 120 days of...