Winter v. Irizarry

300 A.D.2d 472, 751 N.Y.S.2d 415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2002
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Colabella, J.), entered January 10, 2002, which, upon, in effect, the denial of her motion to extend her time to serve the defendant pursuant to CPLR 306-b, and upon the granting of the defendant’s cross motion to dismiss the complaint, is in favor of the defendant and against her, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiff’s motion for an extension of time to serve the defendant, pursuant to CPLR 306-b, and granting the defendant’s cross motion to dismiss the complaint. The record reveals that the plaintiff failed to diligently attempt to effect service or promptly seek an extension of time to effect service, and did not even attempt to show the existence of a meritorious cause of action (see Rihal v Kirchhoff, 291 AD2d 548). As such, an extension of time to serve the defendant was not warranted, either for good cause shown, or in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95).

The plaintiff’s remaining contention is without merit. Ritter, J.P., Friedmann, Luciano and H. Miller, JJ., concur.