Kim v Hwak Yung Kim

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Kim v Hwak Yung Kim 2011 NY Slip Op 33365(U) December 6, 2011 Supreme Court, Nassau County Docket Number: 1818/11 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Honorable Karen Ii M urphv Justice of the Supreme Court DAI MAG KI, Index No. 1818/11 Phlintiff(s), Motion Submitted: 9/1/11 Motion Sequence: 001 , 002 -against- YUG KIM, MAON NEIDKOWSKI and NICCFRA, INC., HW AK Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply........................................................................... ... Briefs: Plaintiff s/Petitioner ' s........................................ Defendant' s/Respondent' s.................................. Defendants Neidkowski and Niccfran , Inc. (" defendants ) move this Court for an Order dismissing the complaint pursuant to CPLR 3211 (a)(5) and (a)(8). Plaintiff cross-moves for an Order extending the time for service ofthe summons and complaint upon defendants Neidkowski and Niccfran, Inc. This personal injury action arises as the result of a motor vehicle accident that occurred on June 9 2007. [* 2] The complaint was originally fied in Queens County on May 17 2010. Issue was joined by service of defendants ' answer on June 15 , 2010. In their combined answer, defendants assert inter alia the affirmative defenses of lack jurisdiction due to improper service , and the expiration of the statute of limitations. Thus (ef). (CPLR S defendants have not waived these grounds for dismissal 3211 On September 23, 2010 the action was transferred to Nassau County. Prior to the transfer , however , defendants moved to dismiss the complaint pursuant to 3211(a)(5) and (a)(8). Their motion was denied in Queens County, without prejudice to renewal before this Court (Butler , J. CPLR A request for judicial intervention and a preliminar conference was served on all paries by defendant Kim on May 25 2011. Defendants served the instant renewed motion to dismiss on June 13, 2011. Plaintiff served his cross-motion for leave to extend the time for service on July 25, 2011. Plaintiff never fied a motion for leave to extend the time for service of the summons and complaint with the Queens County Clerk. I Defendants have provided a copy of Neidkowski indicating service made pursuant to CPLR undisputed by plaintiff that plaintiffs June 1 , counsel the affidavit of ser.ice upon defendant 308 (4), on June 1 , 2010. It is attempted to serve defendantNeidkowski on 2010 by affixing a true copy of the summons and complaint to the door defendant' s residence , without setting fort any prior attempts at service upon Neidkowski. Plaintiff apparently realized the deficiency of this attempt at service , and " a duplicate set of papers was given to a professional process service to complete service " (Affirmation in support of cross-motion , p. 4). The Court finds that plaintiffs June 1 , 2010 attempt at service upon defendant Neidkowski was undoubtedly insufficient to confer this Court with jurisdiction over her person. Plaintiffstates that his cross-motion to extend was not filed because "Justice Denis J. Butler advised counsel that defendants ' motion to dismiss would be rendered moot by his granting of defendant Kim s unopposed motion to change venue. " Justice Butler s Decision and Order do not refer to plaintiffs cross-motion. [* 3] Inc. contends that it was never served with process. In his crossmotion , plaintiff includes an affidavit of non-service related to the corporate defendant. According to the process server , he went to the address listed on the New York State Department of State, Division of Corporations website as the address to which process would be mailed by the Secretar of State , but could find no listing for defendant Niccfran , Inc. in the building s directory. Plaintiff never served New York' s Secretary of State. Thus , the Court finds that the corporate defendant has never been served in this action. Defendant Niccfran , According to plaintiff s papers submitted in support of the cross-motion , service upon defendant Neidkowski was finally made on September 15 2010 , by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's residence , who identified herself to the process server as " Gina Marie Doe. Plaintiffs counsel concedes that the service made on September 15 2010 occurred on the 12pt day after the fiing of the summons and complaint. The statute of limitations to commence this personal injury action arising from a This action was timely commenced by filingon May 17 2010 , which preceded the expiration of the statute of limitations on or motor vehicle accident is three years (CPLR S 214 (5f). about June 8, 2010. Nonetheless , CPLR ~ 306- b requires service to be made within one hundred twenty days after the fiing of the summons and complaint. An extension of time for service is a matter within the court' s discretion , and CPLR ~ 306- b provides two separate standards by (Leader v. Maroney, 2d 291 (2001)). " Spencer 97 N. 2d 95 , 104 , 761 N. 2d 1018 , 736 N. 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 306-b). shown or in the interest of justice , extend the time for service which to measure an application for an extension of time to serve Ponzini (CPLR 306- b dismissal is without prejudice commencement of a new action may be impossible ifthe statute of limitations has expired The Court recognizes that , although a CPLR as it has in this case. Plaintiffs failure to serve the Secretary of State with regard to defendant Niccfran The Court notes that the " affidavit" is not signed by the nota, which is not necessarily a 2d 86 (2d Dept. , 2011)), but 83 A.D. 3d 640 , 922 N. (Carter v. Grenadier Realty, fatal defect it is also undated. Thus , it is not known when the affidavit was sworn to by the process server. The notar also failed to sign this affidavit of service dated September 20 2010. [* 4] Inc. demonstrates a lack of dilgence on his par. Thus , no good cause has been shown by plaintiff for his failure to serve Niccfran , Inc. , and an extension of time to serve defendant Niccfran , Inc. is not warranted upon this ground. As to defendant Neidkowski , plaintiffs first attempt at service was admittedly insufficient. Notwithstanding that the statute oflimitations was set to expire seven days from the date of that attempt at service , plaintiff waited until September 15 , 2010 to serve Neidkowski. Plaintiff offers no explanation as to why Niedkowski was not served within the statute oflimitations period , nor does plaintiff detail any dilgent efforts on his part to effect service prior to September 15 2010. Furthermore , plaintiff admits that his second attempt at service was made on the 121 st day, outside the time limit of CPLR ~ 306- , albeit by one day. Yet, plaintiff offers no explanation for violation of the statute , except to state that the process server was told that Niedkowski had moved. Plaintiff offers a Deparment of Motor Vehicles printout confirming Niedkowski's address. Plaintiffs explanation is unavailng and does not constitute good cause. Plaintiffs efforts at' service were apparently first made more than three months after the first deficient attempt at service , and after the statute of limitations had expired. The Departent of Motor Vehicles printout is dated September 15 2010. Thus , it appears to this Court that plaintiff failed to make any efforts to attempt service upon Niedkowski at any time within the 120- day statutory period , i.e. , later in June , July, or August 2010. Accordingly, an extension of time to serve defendant Niedkowski is not waranted upon the ground of good cause shown. Upon considering if an extension to serve is waranted in the interest of justice, " careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the paries (is required). Unlike an extension request premised on good cause , a plaintiff need not establish reasonably dilgent efforts at service as a threshold matter. However , the court may consider diligence , or lack thereof, along with any other relevant factor in making its determination , including expiration of the Statute of Limitations the meritorious nature of the cause of action , the length of delay in service , the promptness (Leader, supra of a plaintiff s request for the extension of time , and prejudice to defendant" at 1 05). Here , plaintiff failed to seek an extension of time to serve defendants until after defendants ' motion to dismiss was made. Plaintiff s claim that he previously served the motion upon defendants is unpersuasive. There is no affidavit of service/mailng presented and pJaintiff admits that he did not file the motion with the Queens County Clerk. Plaintiff also attempts to deflect blame upon the court system for his delay in making a motion [* 5] seeking leave for an extension of time to serve by referring to " a long delay in these proceedings to accommodate transfer of the file from Queens County to Nassau County. The fact of the matter remains that plaintiff did not make a motion before this Court for an extension of time to serve defendants until July 25 , 2011 , more than one month after defendants moved to dismiss the complaint. Moreover , plaintiff was aware that defendants were going to renew their dismissal motion , given the fact that they previously fied the identical dismissal motion in Queens County, which was denied with leave to renew. The fact that defendants interposed an answer in this action does not serve as an excuse for late service , but is one factor to be considered. Plaintiff s admittedly insufficient first attempt at service , his failure to promptly rectify that error , his lack of dilgence evidenced by his failure to attempt to serve defendants within the 120- day period , his failure to make the motion for an extension of time in Queens County, and his failure to promptly make the motion before this Court constitute a pattern of an extreme lack of diligence , and (Valentin v. Zaltsman , 39 2d 298 (2d Dept. , 2007)). D.3d 852, 835 N. does not warrant an extension of time in the interest of justice Moreover , there is a lack of probative evidence offered as to the claim s merit. Plaintiff s Affidavit of Merit states in conclusory fashion that he was caused to sustain serious and severe injuries as a result of the subject accident, with no evidence supporting his claim that he underwent " arthroscopic surgery. Based on the foregoing, plaintiffs cross-motion for an extension oftime for service of the summons and complaint upon defendants Neidkowski and Niccfran , Inc. is denied 2d 358 (1 st Dept., 2010); (Johnson v. Concourse Village, Inc. 69 A. 3d 410 , 892 N. Riccio v. 2d 191 (2d Dept. 62 A. 3d 634 , 878 N. 2d 125 (2d Dept. , 2006)). Ghulam 29 A. D.3d 558 815 N. , 2009); Ambrosio v. Simonovsky, Defendants ' motion to dismiss the complaint is granted , as the statute of limitations has expired , and the Court has not acquired jurisdiction of the defendants due to plaintiff s improper service of the summons and complaint. The foregoing constitutes the Order of this Court. Dated: December 6 , 2011 Mineola, N. ENTERED DEC 13 2011 NASSAU COUNTY COUNTY CLERK' g OFFICE

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