Leadbeater v. Beaubrun

299 A.D.2d 458, 749 N.Y.S.2d 894, 2002 N.Y. App. Div. LEXIS 11157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2002
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated September 18, 2001, which granted the motion of the defendant Brooklyn Hospital-Caledonian Hospital to dismiss her complaint insofar as asserted against it, and denied her cross motion to extend her to time to serve that defendant and to validate the late service of the summons and complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, with costs.

The plaintiff contends that the Supreme Court should have granted her cross motion to extend her time to serve the defendant Brooklyn Hospital-Caledonian Hospital (hereinafter the hospital) and to validate the late service of the summons and complaint on the hospital pursuant to CPLR 306-b. However, the plaintiff did not offer a reasonable excuse for her failure to serve the hospital within 120 days after commencement of the action. Moreover, despite the fact that the hospital raised the failure to effect service within the statutory time frame as an affirmative defense in its July 1998 answer, the plaintiff did not seek to validate the late service until after the hospital moved for summary judgment in February 2001. In addition, the record is insufficient to determine whether the plaintiff has a potentially meritorious medical malpractice claim against the hospital, and an extensive period of time has elapsed since the accrual of the claim. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiffs cross motion (see Hafkin v North Shore Univ. Hosp., 279 AD2d 86, affd sub nom. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; see also Ludemann v Maisel, 292 AD2d 428; Rihal v Kirchhoff, 291 AD2d 548; Carbonaro v Maimonides Med. Ctr., 289 AD2d 437, 438). Smith, J.P., Schmidt, Adams and Cozier, JJ., concur.