Posada v. Pelaez

Appellate Division of the Supreme Court of New York

Posada v. Pelaez

37 A.D.3d 168, 830 N.Y.S.2d 55

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

DecidedFebruary 1, 2007

StatusPublished

Cited by2 cases

This text of 37 A.D.3d 168 (Posada v. Pelaez) 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

Posada v. Pelaez, 37 A.D.3d 168, 830 N.Y.S.2d 55 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Joan B. Carey, J.), entered on or about August 12, 2005, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion to file her affidavit of service of process against defendant Naseh late or nunc pro tunc and her cross motion for an extension of time to effect such service, and granted Naseh’s cross motion to dismiss the action against him on the ground that he was not properly served with process, unanimously affirmed, without costs.

Plaintiff failed to serve Dr. Naseh within the required 120-day period after filing (CPLR 306-b), and did not move for an extension of time to serve until faced with a motion to dismiss, approximately seven months after the 120-day period had expired, and more than three years after the cause of action had accrued. Moreover, plaintiff failed to demonstrate that her action had merit. In view of such lack of diligence and the long delay in notifying Naseh of this action, which caused him substantial prejudice, an extension of time to serve was unwarranted, and dismissal was appropriate (Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Ekbatani v Rockefeller Ctr. Props., 30 AD3d 347 [2006]). Concur—Tom, J.P, Andrias, Friedman, Catterson and Kavanagh, JJ.

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Order, Supreme Court, New York County (Joan B. Carey, J.), entered on or about August 12, 2005, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion to file her affidavit of service of process against defendant Naseh late or nunc pro tunc and her cross motion for an extension of time to effect such service, and granted Naseh’s cross motion to dismiss the action against him on the ground that he was not properly served with process, unanimously affirmed, without costs.

Plaintiff failed to serve Dr. Naseh within the required 120-day period after filing (CPLR 306-b), and did not move for an extension of time to serve until faced with a motion to dismiss, approximately seven months after the 120-day period had expired, and more than three years after the cause of action had accrued. Moreover, plaintiff failed to demonstrate that her action had merit. In view of such lack of diligence and the long delay in notifying Naseh of this action, which caused him substantial prejudice, an extension of time to serve was unwarranted, and dismissal was appropriate (Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Ekbatani v Rockefeller Ctr. Props., 30 AD3d 347 [2006]). Concur—Tom, J.P, Andrias, Friedman, Catterson and Kavanagh, JJ.

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Bluebook (online)

37 A.D.3d 168, 830 N.Y.S.2d 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/posada-v-pelaez-nyappdiv-2007.

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