Gem Flooring, Inc. v Kings Park Industries, Inc.

Gem Flooring, Inc. v Kings Park Indus., Inc. 2006 NY Slip Op 02162 [27 AD3d 617] March 21, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

Gem Flooring, Inc., Appellant,
v
Kings Park Industries, Inc., et al., Respondents.

—[*1]

In an action to recover for damage to property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated September 14, 2004, which denied its motion to extend its time within which to serve the summons and complaint pursuant to CPLR 306-b.

Ordered that the order is affirmed, with costs.

Under the facts of this case, the Supreme Court providently exercised its discretion in denying the plaintiff's motion to extend the time within which to serve the summons and complaint pursuant to CPLR 306-b. Notwithstanding the expiration of the statute of limitations (see CPLR 214 [4]), the plaintiff did not demonstrate facts and circumstances that would support the grant of such relief in the interest of justice (see Otero v Flushing Hosp., 300 AD2d 639, 640 [2002]; Rihal v Kirchhoff, 291 AD2d 548 [2002]; cf. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 106 [2001]). The plaintiff failed to show that it was diligent in attempting service within the 120-day period after the filing of the action. Further, the plaintiff failed to promptly move for an extension of time and did not make a showing of merit (see Smith v Southside Hosp., 15 AD3d 387, 388 [2005]). Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.