Carbonaro v. Maimonides Medical Center

Dec 24, 2001
Versions:289 A.D.2d 437
735 N.Y.S.2d 162
2001 N.Y. App. Div. LEXIS 13006

In a medical malpractice action, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Bellard, J.), dated December 5, 2000, as denied that branch of his motion pursuant to CPLR 306-b which was for an extension of time to serve the complaint upon the defendant Alan Lefkowitz.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff filed the summons and complaint in this medical malpractice action in March 1998, less than one month before the 10-year infancy toll of the Statute of Limitations expired (see, CPLR 208). Although the plaintiffs attorney *438learned in May 1998 that the defendant Dr. Alan Lefkowitz had retired, he failed to make any diligent efforts to determine that defendant’s location to effect timely service, even after the court granted the plaintiff a 120-day extension pursuant to CPLR 306-b in July 1998. The plaintiff merely attempted to serve Dr. Lefkowitz at a location which undisputedly was not his actual place of business. In May 1999 Dr. Lefkowitz submitted an affidavit to the court in which he revealed his home address in Florida. However, not until October 1999 did the plaintiff seek an additional extension of time to serve him. Service was not effected on Dr. Lefkowitz until November 15, 1999, approximately one year after expiration of the original 120-day extension granted to the plaintiff and approximately 18 months after expiration of the Statute of Limitations.

Considering the extended delay in service, the plaintiffs lack of diligence in effecting service, the failure to promptly move for an extension of time, the prejudice to Dr. Lefkowitz from the extended delay, and the absence of a reasonable excuse for the delay, the plaintiff failed to demonstrate the existence of good cause or that the interest of justice would be served by granting a second extension pursuant to CPLR 306-b (see, Leader v Maroney, Ponzini & Spencer, 97 NY2d 95). O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.