DeLorenzo v. Gabbino Pizza Corp.

83 A.D.3d 992, 921 N.Y.S.2d 565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2011
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, West-Chester County (Colabella, J.), entered April 29, 2010, which, inter alia, granted the defendant’s motion to dismiss the complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, with costs.

On October 16, 2006, the plaintiff allegedly was injured when she slipped and fell on a slippery substance in a pizzeria owned by the defendant. In January 2009, the plaintiff commenced this action by filing a summons and complaint with the Westchester County Clerk.

It is undisputed that the plaintiff failed to comply with CPLR 306-b, as she failed to effect service upon the defendant within the 120-day period allowed by that statute (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]; Calloway v Wells, 79 AD3d 786 [2010]; Bumpus v New York City Tr. Auth., 66 AD3d 26 [2009]). To the extent that the plaintiff attempted to informally seek leave to effect late service of the original summons and complaint upon the defendant pursuant to CPLR 306-b, that affirmative relief should have been sought in a notice of cross motion to the Supreme Court (see Rinaldi v Rochford, 11 AD3d 720 [2010]) and, in any event, the plaintiff did not demonstrate the existence of facts that would support the granting of such relief (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]; Calloway v Wells, 79 AD3d at 787; Redman v South Is. Orthopaedic Group, P.C., 78 AD3d 1147 [2010], lv denied 16 NY3d 707 [2011]; Rinaldi v Rochford, 11 AD3d at 720).

The plaintiffs remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the complaint pursuant to CPLR 306-b. Skelos, J.P., Eng, Austin and Cohen, JJ., concur.