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DEFENDANT IN THIS MED MAL CASE WAS NOT PROPERLY SERVED AND PLAINTIFF WAS NOT ENTITLED TO AN EXTENSION OF THE TIME TO SERVE IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this medical malpractice case was entitled to dismissal of all claims because he was not properly served:

Defendant Michael B. Shannon, M.D. contends that this action should have been dismissed as against him for lack of timely service under CPLR 306-b … . It is undisputed on appeal that plaintiff failed to properly serve Shannon within 120 days of commencement of this action. Plaintiff does not purport to have demonstrated good cause for the delay. We find that an extension of time to serve Shannon was not warranted in the interest of justice.

Shannon’s unrebutted affidavit reflects that service was attempted at an office where he worked only as an independent contractor and that his residence and principal place of business were in Ohio. Plaintiff failed to make any effort to investigate further or to correct this error when Shannon failed to appear or answer. She did not file her default motion until nearly two years after commencing this action, which is well over the one-year deadline to make such a motion (see CPLR 3215[c]). The motion was also filed after discovery and motion practice were well underway. Diaz v Nasir, 2024 NY Slip Op 03536, First Dept 6-27-24

Practice Point: Plaintiff did not exercise due diligence in attempting to serve defendant and did not make a timely motion to extend the time to serve, complaint dismissed.

 

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