Opinion
2021–04163 Index No. 500484/19
09-27-2023
Margarette PIERRE, appellant, v. Daisy GRUESO, etc., et al., respondents, et al., defendants.
David M. Harrison, Brooklyn, NY, for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Claude S. Platton and Julie Steiner of counsel), for respondents.
David M. Harrison, Brooklyn, NY, for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Claude S. Platton and Julie Steiner of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Pamela L. Fisher, J.), dated May 10, 2021. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 306–b to extend the time to serve the defendant Deborah Williams with the summons and complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for medical malpractice on January 8, 2019. On April 22, 2019, a process server attempted to serve the summons and complaint upon the defendant Deborah Williams but was unsuccessful. The plaintiff made no further attempt to serve Williams. On June 17, 2020, the plaintiff moved, among other things, pursuant to CPLR 306–b to extend the time to serve Williams with the summons and complaint. In an order dated May 10, 2021, the Supreme Court, inter alia, denied that branch of the plaintiff's motion. The plaintiff appeals.
Pursuant to CPLR 306–b, a court may, in the exercise of its discretion, grant a motion for an extension of the time for service "upon good cause shown or in the interest of justice" (see Wells Fargo Bank, N.A. v. Boakye–Yiadom, 213 A.D.3d 976, 977, 185 N.Y.S.3d 191 ). " ‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards" ( BAC Home Loans Servicing, L.P. v. Rogener, 171 A.D.3d 996, 998, 98 N.Y.S.3d 283 ).
" ‘To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service’ " ( LaSalle Bank, NA v. Ferrari, 210 A.D.3d 976, 977, 179 N.Y.S.3d 687, quoting Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31, 883 N.Y.S.2d 99 ). "Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service" ( Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99 [citations omitted]). Here, the plaintiff failed to demonstrate that she was entitled to an extension of time to serve Williams for good cause, as she failed to establish that she made reasonably diligent efforts in attempting service upon Williams (see Rodriguez v. Consolidated Edison Co. of N.Y., Inc., 163 A.D.3d 734, 736, 81 N.Y.S.3d 404 ; Hourie v. North Shore–Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp., 150 A.D.3d 707, 708–709, 54 N.Y.S.3d 53 ).
"Where, as here, the plaintiff fails to establish good cause, courts must consider the ‘interest of justice’ standard of CPLR 306–b" ( LaSalle Bank, NA v. Ferrari, 210 A.D.3d at 978, 179 N.Y.S.3d 687 [internal quotation marks omitted]). "The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of the action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; see BAC Home Loans Servicing, L.P. v. Rogener, 171 A.D.3d at 998, 98 N.Y.S.3d 283 ). Contrary to the plaintiff's contention, she failed to demonstrate that an extension of time to serve Williams was warranted in the interest of justice. In this regard, the plaintiff failed to make reasonably diligent efforts at service within the 120–day period and failed to offer any excuse for her delay in making a motion to extend the time for service for approximately 10 months before the COVID–19 pandemic began (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 107, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; Horowitz v. Coch, 82 A.D.3d 707, 708, 917 N.Y.S.2d 894 ; Redman v. South Is. Orthopaedic Group, P.C., 78 A.D.3d 1147, 1148, 911 N.Y.S.2d 674 ). In addition, the plaintiff failed to establish that she had a potentially meritorious medical malpractice cause of action against Williams (see Williams v. St. John's Episcopal Hosp., 173 A.D.3d 1117, 1119, 104 N.Y.S.3d 648 ; Wilbyfont v. New York Presbyt. Hosp., 131 A.D.3d 605, 607, 15 N.Y.S.3d 193 ). Further, the plaintiff failed to rebut the inference of substantial prejudice that arose due to the protracted delay, as she failed to provide any evidence that Williams had actual notice of the action within the 120–day service period (see U.S. Bank N.A. v. Fink, 206 A.D.3d 858, 861, 171 N.Y.S.3d 113 ; Wells Fargo Bank, NA v. Barrella, 166 A.D.3d 711, 714, 88 N.Y.S.3d 36 ; Wilbyfont v. New York Presbyt. Hosp., 131 A.D.3d at 607, 15 N.Y.S.3d 193 ).
Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to extend the time to serve Williams with the summons and complaint.
BRATHWAITE NELSON, J.P., MALTESE, WOOTEN and WAN, JJ., concur.