Wilkins v. Burgess

• Decision Date: 31 January 2006
• Docket Number: 2005-03681.
• Citation: Wilkins v. Burgess, 25 AD3d 794, 807 N.Y.S.2d 574, 2006 NY Slip Op 651 (N.Y. App. Div. 2006)
• Parties: PAULA WILKINS, Appellant, v. ALEXANDER BURGESS, Respondent.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 794

807 N.Y.S.2d 574

2006 NY Slip Op 00651

PAULA WILKINS, Appellant, v. ALEXANDER BURGESS, Respondent.

2005-03681.

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 31, 2006.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Carey, J.H.O.) dated March 9, 2005, which denied her cross motion to extend the time to serve the summons and complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). The plaintiff failed to establish that good cause existed to extend the time for service. The Supreme Court determined after a hearing that service upon the defendant had not been established. Thus, there is no merit to the plaintiff's claim that she exercised reasonable diligence in serving the defendant and in relying upon the process server's affidavit. The description contained in the affidavit of the person served bore little or no resemblance to the defendant, with whom the plaintiff once lived.

The plaintiff also failed to establish her entitlement to an extension in the interest of justice. She demonstrated...