Opinion
CA 04-02776.
April 29, 2005.
Appeal from an order of the Supreme Court, Erie County (James B. Kane, J.H.O.), entered January 29, 2004 in asbestos-related litigation. The order granted the motions of defendants Borg-Warner Corporation, Honeywell International, Inc. (formerly known as Allied Signal, Inc., individually and as successor-in-interest to the Bendix Corporation) and DaimlerChrysler Corporation (formerly known as Chrysler Corporation) seeking summary judgment dismissing the second amended complaint against them as time-barred and denied plaintiff's request for an extension of time in the interest of justice within which to effect service of the summons and complaint.
BARON BUDD, P.C., DALLAS, TEXAS (RENEE MELANCON, OF THE TEXAS BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR PLAINTIFF-APPELLANT.
DONOHUE, SABO, VARLEY HUTTNER, LLP, ALBANY (BRUCE S. HUTTNER OF COUNSEL), FOR DEFENDANT-RESPONDENT BORG-WARNER CORPORATION.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (SHAMUS B. MULDERIG OF COUNSEL), FOR DEFENDANT-RESPONDENT DaimlerChrysler CORPORATION (FORMERLY KNOWN AS CHRYSLER CORPORATION).
BROWN HUTCHINSON, ROCHESTER (MICHELLE A. HUTCHINSON OF COUNSEL), FOR DEFENDANT-RESPONDENT HONEYWELL INTERNATIONAL, INC. (FORMERLY KNOWN AS ALLIED SIGNAL, INC., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE BENDIX CORPORATION).
Present — Kehoe, J.P., Gorski, Smith, Pine and Hayes, JJ., concur.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Under the circumstances of this case, and upon its consideration of the appropriate factors ( see Leader v. Maroney, Ponzini Spencer, 97 NY2d 95, 105-106; see also Slate v. Schiavone Constr. Co., 4 NY3d 816), Supreme Court providently exercised its discretion in denying plaintiff's request for an extension of time "in the interest of justice" within which to effect service of the summons and complaint upon defendants (CPLR 306-b; see Leader, 97 NY2d at 106-107; Tarzy v. Epstein, 8 AD3d 656; Winter v. Irizarry, 300 AD2d 472, 473; cf. Slate, 4 NY3d at 817).