Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co.

[*1] Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. 2019 NY Slip Op 51171(U) Decided on July 12, 2019 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-2251 K C

Jamaica Dedicated Medical Care, P.C., as Assignee of Terrell Staley, Appellant,

against

USAA Casualty Ins. Co., Respondent.

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff's "cross" motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.

ORDERED that the order is affirmed, without costs.

Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff "cross-moved," pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant's motion and denied plaintiff's "cross" motion.

Pursuant to CPLR 306-b, service of a summons and complaint "shall be made within one hundred twenty days after the commencement of the action or proceeding" and "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (see also Leader v Maroney, Ponzini & Spencer, [*2]97 NY2d 95, 104-105 [2001]). " 'Good cause' and 'interest of justice' are two separate and independent statutory standards" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2009]; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). "An extension of time for service is a matter within the court's discretion" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 101).

In the case at bar, it is uncontroverted that plaintiff did not serve defendant with the summons and complaint until December 31, 2015, which was 47 days after the expiration of the CPLR 306-b 120-day time period for service. Plaintiff blames law office failure for this delay; however, plaintiff did not file its "cross" motion for an extension of the time to effectuate service of the summons and complaint upon defendant until about nine months after defendant had moved for dismissal of the complaint on the ground that the time for service had expired. Also, it is uncontroverted that plaintiff effectuated service on defendant after the six-year statute of limitations (see CPLR 213) had expired. In addition, plaintiff made no arguments, and annexed no documentation, regarding the underlying merit of its action.

Since plaintiff's law office failure argument does not amount to a showing of good cause (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106), we next review plaintiff's cross motion under an interest of justice standard (id.). Upon a careful analysis of the aforementioned factual setting of the case, we find that the Civil Court properly granted defendant's motion to dismiss the complaint and denied plaintiff's "cross" motion.

Accordingly, the order is affirmed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019