Brown v. Sanders

Appellate Division of the Supreme Court of New York

Brown v. Sanders

142 A.D.3d 940, 37 N.Y.S.3d 444

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 14, 2016

Docket2014-05623

StatusPublished

Cited by17 cases

This text of 142 A.D.3d 940 (Brown v. Sanders) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Sanders, 142 A.D.3d 940, 37 N.Y.S.3d 444 (N.Y. Ct. App. 2016).

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Opinion

In an action, inter alia, to recover damages for conversion and legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Rings County (Velasquez, J.), dated March 28, 2014, as granted that branch of the motion of the defendants Brauner Baron Rosenweig and Klein and David Brauner which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and denied her cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint on those defendants.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs contention, the Supreme Court did not acquire personal jurisdiction over the defendants Brauner Baron Rosenweig and Klein and David Brauner (hereinafter together the Brauner defendants) when they first appeared by pre-answer motion in this action approximately one year after the action was commenced, since an objection to personal jurisdiction pursuant to CPLR 3211 (a) (8) was asserted in their motion (see CPLR 320 [b]; 3211 [e]; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140 [1986]; cf. Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]). Furthermore, the court properly granted that branch of the Brauner defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, since it is undisputed that service upon the Brauner defendants was not made within 120 days after the filing of the summons and complaint {see CPLR 306-b).

The Supreme Court also providently exercised its discretion in denying the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint on the *941 Brauner defendants. The plaintiff failed to demonstrate that she exercised reasonably diligent efforts in attempting to effect proper service of process on the Brauner defendants and, thus, did not establish good cause (see Moundrakis v Dellis, 96 AD3d 1026, 1027 [2012]). Further, the plaintiff failed to demonstrate that an extension of time was warranted in the interest of justice. The plaintiff exhibited a lack of diligence in commencing the action, and failed to establish a potentially meritorious cause of action (see Navarrete v Metro PCS, 137 AD3d 1230, 1231 [2016]; Agudo v Zhinin, 94 AD3d 680, 681 [2012]).

Rivera, J.R, Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.

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In an action, inter alia, to recover damages for conversion and legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Rings County (Velasquez, J.), dated March 28, 2014, as granted that branch of the motion of the defendants Brauner Baron Rosenweig and Klein and David Brauner which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and denied her cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint on those defendants.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs contention, the Supreme Court did not acquire personal jurisdiction over the defendants Brauner Baron Rosenweig and Klein and David Brauner (hereinafter together the Brauner defendants) when they first appeared by pre-answer motion in this action approximately one year after the action was commenced, since an objection to personal jurisdiction pursuant to CPLR 3211 (a) (8) was asserted in their motion (see CPLR 320 [b]; 3211 [e]; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140 [1986]; cf. Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]). Furthermore, the court properly granted that branch of the Brauner defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, since it is undisputed that service upon the Brauner defendants was not made within 120 days after the filing of the summons and complaint {see CPLR 306-b).

The Supreme Court also providently exercised its discretion in denying the plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint on the *941 Brauner defendants. The plaintiff failed to demonstrate that she exercised reasonably diligent efforts in attempting to effect proper service of process on the Brauner defendants and, thus, did not establish good cause (see Moundrakis v Dellis, 96 AD3d 1026, 1027 [2012]). Further, the plaintiff failed to demonstrate that an extension of time was warranted in the interest of justice. The plaintiff exhibited a lack of diligence in commencing the action, and failed to establish a potentially meritorious cause of action (see Navarrete v Metro PCS, 137 AD3d 1230, 1231 [2016]; Agudo v Zhinin, 94 AD3d 680, 681 [2012]).

Rivera, J.R, Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.

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142 A.D.3d 940, 37 N.Y.S.3d 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-sanders-nyappdiv-2016.

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