Nigro v. Eastco Building Services, Inc.

Apr 12, 2004
Versions:6 A.D.3d 514
774 N.Y.S.2d 405

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated March 31, 2003, as denied their motion to dismiss the action for lack of personal jurisdiction pursuant to CFLR 3211 (e), and granted plaintiffs’ second cross motion to extend the time to serve the complaint, and the plaintiffs cross-appeal from so much of the same order as denied their first cross motion for leave to enter a judgment upon the defendants’ default in answering pursuant to CFLR 3215.

Ordered that the order is affirmed, without costs or disbursements.

Since the plaintiffs’ initial attempt at service was invalid, the denial of their first cross motion for leave to enter a judgment upon the defendant’s default was proper (see Fwu Chyuang Chow v Kenteh Enters. Corp., 169 AD2d 572 [1991]; Preferred Elec. & Wire Corp. v Duracraft Prods., 114 AD2d 407 [1985]). The Supreme Court thereafter providently exercised its discretion by extending the time for service in the interest of justice under CFLR 306-b (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Citron v Schlossberg, 282 AD 2d 642 [2001]).

In light of our determination, we need not reach the parties’ remaining contentions. Smith, J.P., Luciano, Adams and Rivera, JJ., concur.