Summary
In Leadbeater, plaintiff did not offer a reasonable excuse for her failure to serve the hospital within the 120-day period, and did not seek to validate the late service until after the defendant had moved for summary judgment dismissal, nothwithstanding that the hospital had raised the failure to timely serve as an affirmative defense in its answer.
Summary of this case from YARDENI v. MANHATTAN EYE, EAR THROAT HOSPITALOpinion
2001-09154
Submitted October 17, 2002.
November 18, 2002.
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.
Peters, Berger, Koshel Goldberg, P.C. (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant.
Bower, Sanger Lawrence, P.C., New York, N.Y. (Steven J. Zaloudek of counsel), for respondent.
Before: NANCY E. SMITH, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
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 plaintiff's cross motion (see Hafkin v. North Shore Univ. Hosp., 279 A.D.2d 86, affd sub nom. Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95; see also Ludemann v. Maisel, 292 A.D.2d 428; Rihal v. Kirchhoff, 291 A.D.2d 548; Carbonaro v. Maimonides Hosp., 289 A.D.2d 437, 438).
SMITH, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.