Batson v. Sussman

5 A.D.3d 619, 774 N.Y.S.2d 782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries and property damage, the defendant appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated October 30, 2002, which denied his motion, inter alia, to vacate an ex parte order of the same court dated April 29, 2002, which, among other things, granted the plaintiffs’ motion for an extension of time to effect service of process pursuant to CPLR 306-b.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to vacate so much of the ex parte order dated April 29, 2002, as granted the plaintiffs’ motion for an extension of time to effect service of process pursuant to CPLR 306-b and substituting therefor a provision granting that branch of the motion; as so modified, the order dated October 30, 2002, is affirmed, without costs or disbursements, and so much of the ex parte order dated April 29, 2002, as granted the plaintiffs’ motion for an extension of time to effect service of process pursuant to CPLR 306-b is vacated.

Under the circumstances of this case, the Supreme Court should not have granted relief pursuant to CPLR 306-b. Accordingly, that branch of the defendant’s motion which was to vacate the portion of the ex parte order granting the plaintiffs such relief should have been granted.

The parties’ remaining contentions either are without merit or need not be decided in light of our determination. Ritter, J.P., Florio, Smith and H. Miller, JJ., concur.