Waggaman v. Vernon

In an action, inter alia, to recover damages for intentional infliction of emotional distress, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Sweeney, J.), dated February 4, 2013, which denied his motion for leave to enter a default judgment against the defendant David Vernon upon his failure to appear or answer, and granted that defendant’s cross motion pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against him. Ordered that the order is affirmed, with costs. With exceptions not relevant here, under CPLR 306-b, service of the summons and complaint or summons with notice “shall be made within” 120 days after the commencement of the action (CPLR 306-b; see PDK Labs, Inc. v G.M.G. Trans W. Corp., 101 AD3d 970, 974 [2012]). “If service is not made upon a defendant within the time provided in [CPLR 306-b], the court, *1111 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” (CPLR 306-b; see PDK Labs, Inc. v G.M.G. Trans W. Corp., 101 AD3d at 974). Here, the plaintiff failed to timely serve the defendant David Vernon with the summons with notice in accordance with the provisions of CPLR 306-b. Accordingly, the Supreme Court properly granted Vernon’s cross motion pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against him (see CPLR 306-b; Webb v Greater N.Y. Auto. Dealers Assn., Inc., 93 AD3d 561, 562 [2012]; Matter of Birch Tree Partners, LLC v Zoning Bd. of Appeals of Town of E. Hampton, 90 AD3d 749, 750 [2011]; cf. PDK Labs, Inc. v G.M.G. Trans W. Corp., 101 AD3d at 974-975; DeLorenzo v Gabbino Pizza Corp., 83 AD3d 992, 993 [2011]; Seldin v Smith, 76 AD3d 623, 625 [2010]; Costello v Reilly, 36 AD3d 581, 582 [2007]), and properly denied the plaintiff’s motion for leave to enter a default judgment against Vernon upon his failure to appear or answer. The plaintiff’s remaining contentions are without merit. Skelos, J.P., Dickerson, Austin and Maltese, JJ., concur.