Opinion
682 Index No. 159159/21 Case No.2022–03778
10-03-2023
Alina MORINI, Plaintiff–Appellant, v. Taya THURMAN, Defendant–Respondent, "John and or Jane Doe 1" et al., Defendants.
Robert J. Hantman, New York, for appellant. Eisner, LLP, New York (Evangelos Michailidis of counsel), for respondent.
Robert J. Hantman, New York, for appellant.
Eisner, LLP, New York (Evangelos Michailidis of counsel), for respondent.
Kern, J.P., Moulton, Mendez, Higgitt, O'Neill Levy, JJ.
Order, Supreme Court, New York County (David B. Cohen, J.), entered August 25, 2022, which denied plaintiff's motion for default judgment, or, in the alternative, for leave to serve defendant by an alternate service method, and granted defendant's cross-motion to dismiss the action without prejudice, unanimously affirmed, with costs.
Plaintiff makes no substantive argument with respect to her default motion, and thus has waived any arguments regarding the merits of that motion on appeal (see e.g. Rozina v. Casa 74th Dev. LLC, 115 A.D.3d 506, 507, 982 N.Y.S.2d 83 [1st Dept. 2014], lv dismissed 24 N.Y.3d 1097, 2 N.Y.S.3d 64, 25 N.E.3d 978 [2015] ). In any event, the court providently denied the default motion based on plaintiff's incomplete service, her failure to submit a proper proof of service and her failure to submit proof of the merits of her claim ( Commissiong v. Mark Greenberg Real Estate Co. LLC, 203 A.D.3d 657, 657, 163 N.Y.S.3d 403 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1119, 172 N.Y.S.3d 671, 192 N.E.3d 1150 [2022] ).
The court also properly granted defendant's cross-motion to dismiss. CPLR 306–b requires a plaintiff to serve a summons with notice within 120 days of commencing the action or be subject to dismissal. Further, under CPLR 308(2), proof of substituted service must be filed with the court within 20 days of the date the summons with notice was delivered or mailed, whichever is later (id. ). However, plaintiff failed to offer admissible evidence that she effected service or filed a proof of service prior to the deadlines, and failed to seek relief from court for an extension ( HSBC Bank USA, N.A. v. Russo, 205 A.D.3d 647, 648, 169 N.Y.S.3d 617 [1st Dept. 2022] ). Regardless, plaintiff failed to show that an extension of time should have been granted "upon good cause shown or in the interest of justice" ( id. ).