Webb v. Greater New York Automobile Dealers Ass'n

Mar 22, 2012
Versions:93 A.D.3d 561
940 N.Y.S.2d 608

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered April 21, 2011, which, in this action for sexual harassment and fraud, granted defendants’ motion to dismiss the complaint for failure to serve a summons and complaint pursuant to CPLR 306-b, and denied plaintiff‘s cross motion for leave to extend the time for serving a summons and complaint, unanimously affirmed, without costs.

Plaintiff‘s counsel‘s failure to maintain an in-state office at the time she commenced the action was a violation of Judiciary Law § 470, which requires dismissal of the action (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Neal v Energy Transp. Group, 296 AD2d 339 [2002]; Lichtenstein v Emerson, 251 AD2d 64, 64-65 [1998]).

The court also properly granted defendants’ motion to dismiss plaintiff‘s action pursuant to CPLR 306-b, since defendants were not served within 120 days of the filing of the summons with notice. Plaintiff‘s cross motion for an extension of time to serve the summons with notice was properly denied, since she failed to demonstrate good cause for her failure to serve defendants for almost three years, and failed to show that the interests of justice would warrant granting of the motion (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]). Plaintiff established only that the decision to withhold service was part of a litigation strategy to first pursue one of the named defendants in a separate action. Concur—Tom, J.P., Friedman, Acosta, DeGrasse and Román, JJ.