Redman v. South Island Orthopaedic Group, P.C.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: SKELOS
• Citation: Redman v. South Island Orthopaedic Group, P.C., 911 N.Y.S.2d 674, 78 A.D.3d 1147 (N.Y. App. Div. 2010)
• Decision Date: 30 November 2010
• Parties: Peter REDMAN, respondent, v. SOUTH ISLAND ORTHOPAEDIC GROUP, P.C., et al., appellants.

911 N.Y.S.2d 674

78 A.D.3d 1147

Peter REDMAN, respondent,

v.SOUTH ISLAND ORTHOPAEDIC GROUP, P.C., et al., appellants.

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

Nov. 30, 2010.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Lena Holubnyczyj of counsel), for appellants.

Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for respondent.

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Galasso, J.), entered January 7, 2010, which denied their motion pursuant to CPLR 306-b to dismiss the complaint and granted the plaintiff's cross motion pursuant to CPLR 306-b to extend the time for service of the summons and complaint nunc pro tunc.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion pursuant to CPLR 306-b to dismiss the complaint is granted and the plaintiff's cross motion pursuant to CPLR 306-b to extend the time for service of the summons and complaint nunc pro tunc is denied.

In opposition to the defendants' motion pursuant toCPLR 306-b to dismiss the complaint and in support of the plaintiff's cross motion pursuant to that statute to extend the time for service of the summons and complaint, the plaintiff was required to show either good cause for his failure to serve the defendants with the summons and complaint within 120 days after filing or that an extension of time to effect service should be granted in the interest of justice ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104-107, 736 N.Y.S.2d 291, 761 N.E.2d 1018; Riccio v. Ghulam, 29 A.D.3d 558, 560, 815 N.Y.S.2d 125). The plaintiff failed to demonstrate good cause as the unsubstantiated excuse regarding the process server's failure to serve the defendants was insufficient ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 104-105, 736 N.Y.S.2d 291, 761 N.E.2d 1018; Wilkins v. Burgess, 25 A.D.3d 794, 795, 807 N.Y.S.2d 574).

The plaintiff also failed to establish his entitlement to an extension of time for service of the summons and complaint in the interest of justice in view of the lack of diligence shown by the plaintiff ( see Slate v. Schiavone Constr. Co., 4 N.Y.3d 816, 796 N.Y.S.2d 573, 829 N.E.2d 665). The more than one-year delay between the time the summons and complaint were filed and the time the cross motion was made, the plaintiff's failure to cross-move until after the defendants moved to dismiss the complaint, the 2 1/2-month delay between the expiration of the statute of limitations and the defendants' receipt of notice of this action, and the prejudice to the...