Friday, August 28, 2015

Leave to extend the time to serve process.

Practice point:  The Appellate Division reversed the motion court and denied that branch of plaintiff's motion for leave to extend the time within which to serve the summons and complaint.

Plaintiff's supporting affidavits failed to establish that she exercised reasonably diligent efforts in attempting to effect proper service of process upon the appellant and, thus, she failed to show good cause, as required by CPLR 306-b.  In addition, plaintiff failed to establish her entitlement to the extension in the interest of justice as she failed to demonstrate a potentially meritorious medical malpractice cause of action. Neither did plaintiff rebut defendant's assertion that he did not have notice of the action until nearly 11 months after the expiration of the statute of limitations, and the concomitant inference that he was substantially prejudiced by plaintiff's lengthy delay in seeking leave to extend time.

Student note:  Pursuant to the statute's terms, granting the motion requires a showing that there is good cause, or a determination that it is in the interest of justice.

Case:  Wilbyfont v. New York Presbyt. Hosp., NY Slip Op 06585 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Summary judgment in a personal injury action.