Eng v. Sichenzia

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from a judgment of the Supreme Court, Putnam County (Hickman, J.), entered July 30, 2003, which, upon an order of the same court dated June 3, 2003, granting the motion of the defendant Frank E. DeEsso pursuant to CPLR 5015 (a) (3) to vacate a prior order of the same court dated November 25, 2002, granting the plaintiffs’ ex parte motion for an extension of time within which to serve the summons and complaint upon Frank E. DeEsso on the ground that the prior order was procured by fraud, misrepresentation, and other misconduct, and pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against Frank E. DeEsso, dismissed the complaint insofar as asserted against Frank E. DeEsso. Ordered that the judgment is affirmed, with costs. The Supreme Court providently exercised its discretion in granting that branch of the motion of the defendant Frank E. DeEsso which was pursuant to CPLR 5015 (a) (3) to vacate a prior order granting the plaintiffs’ ex parte motion for an exten 755 sion of time within which to serve a summons and complaint upon him (see Peterson v Melchiona, 269 AD2d 375 [2000]). The plaintiffs failed to advise the court that DeEsso had informed them that he wished to receive notice of any such motion for an extension and that he would vigorously oppose such a motion. Further, the Supreme Court also providently exercised its discretion in granting that branch of DeEsso’s motion which was pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against him after vacating the prior order. The plaintiffs failed to provide an explanation for their protracted delay in making their motion to extend the time for service (see Ludemann v Maisel, 292 AD2d 428 [2002]). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.