Okoh v. Bunis

48 A.D.3d 357, 854 N.Y.S.2d 336

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 27, 2006, which, in an action for personal injuries sustained in an automobile accident, denied defendants’ motion to dismiss the complaint for failure to make service within 120 days after the filing of the summons and complaint as required by CPLR 306-b, and granted plaintiffs cross motion pursuant to CPLR 306-b for an extension of time to make service, unanimously reversed, on the law and the facts, without costs, the motion granted and the cross motion denied. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint. Plaintiffs excuses all relate to the failure to make service within the 120-day period. There is no explanation whatsoever why plaintiffs attorney waited more than 14 months to ask for an extension, and then only in response to defendants’ motion to dismiss. Nor is there a showing of merit (see Jimenez v City of New York, 13 AD3d 107 [2004]). The only injuries specified in plaintiff’s opposition are “bulging” discs in the lower back; he makes no claim of hospitalization and does not describe any treatment. Under the circumstances, we reject the motion court’s finding that notwithstanding the failure to show merit and the lack of diligence after the 120-day period, an extension is warranted by reason of plaintiffs attorney’s illness during the 120-day period, the expiration of the statute of limitations, and the prompt notice within weeks of the accident that plaintiff’s attorney gave defendants and their insurer of plaintiffs claims arising out of the accident. Concur—Lippman, RJ., Friedman, Williams and Acosta, JJ.