Opinion
2011-04-26
Madeline DeLORENZO, appellant, v. GABBINO PIZZA CORP., etc., respondent.
Lawrence D. Engle, Purchase, N.Y., for appellant. Thomas K. Moore, White Plains, N.Y. (Gary M. Bell of counsel), for respondent.
Lawrence D. Engle, Purchase, N.Y., for appellant. Thomas K. Moore, White Plains, N.Y. (Gary M. Bell of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered April 29, 2010, which, inter alia, granted the defendant's motion to dismiss the complaint pursuant to CPLR 306–b.
ORDERED that the order is affirmed, with costs.
On October 16, 2006, the plaintiff allegedly was injured when she slipped and fell on a slippery substance in a pizzeria owned by the defendant. In January 2009, the plaintiff commenced this action by filing a summons and complaint with the Westchester County Clerk.
It is undisputed that the plaintiff failed to comply with CPLR 306–b, as she failed to effect service upon the defendant within the 120–day period allowed by that statute ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018;Calloway v. Wells, 79 A.D.3d 786, 912 N.Y.S.2d 440;Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 883 N.Y.S.2d 99). To the extent that the plaintiff attempted to informally seek leave to effect late service of the original summons and complaint upon the defendant pursuant to CPLR 306–b, that affirmative relief should have been sought in a notice of cross motion to the Supreme Court ( see Rinaldi v. Rochford, 77 A.D.3d 720, 908 N.Y.S.2d 592) and, in any event, the plaintiff did not demonstrate the existence of facts that would support the granting of such relief ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 814 N.Y.S.2d 580, 847 N.E.2d 1154;Calloway v. Wells, 79 A.D.3d at 787, 912 N.Y.S.2d 440;Redman v. South Is. Orthopaedic Group, P.C., 78 A.D.3d 1147, 911 N.Y.S.2d 674,lv. denied 16 N.Y.3d 707, 920 N.Y.S.2d 781, 945 N.E.2d 1032;Rinaldi v. Rochford, 77 A.D.3d at 720, 908 N.Y.S.2d 592).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the complaint pursuant to CPLR 306–b.