Smith v. Southside Hospital

In an action, inter alia, to recover damages for podiatric malpractice, the defendant Southside Hospital appeals, and the [388] defendants Edward A. Buró, D.RM., sued herein as Edward Buro, and Mayfair Foot Care, PLLC, sued herein as Mayfair Foot Care, separately appeal, from an order of the Supreme Court, Suffolk County (Molia, J.), dated January 14, 2004, which denied their respective motions to dismiss the complaint insofar as asserted against them for failure to timely serve the summons and complaint and granted the plaintiffs cross motion to extend his time within which to serve the summons and complaint pursuant to CPLR 306-b. Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motions are granted, the cross motion is denied, and the complaint is dismissed. As the plaintiff failed to make any showing of merit, or offer any reason for his failure to serve the summons and complaint within the 120-day post-filing period (see CPLR 306-b), and as there was more than a minimal delay in making service beyond that deadline, the Supreme Court improvidently exercised its discretion in granting the plaintiffs cross motion to extend his time within which to effect service (see Leadbeater v Beaubrun, 299 AD2d 458 [2002]; see also Henig v Good Samaritan Med. Ctr., 301 AD2d 571 [2003]; cf. Scarabaggio v Olympia & York Estates Co., 278 AD2d 476 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]; White v Maradiaga, 8 AD3d 559 [2004]; Chiaro v D’Angelo, 7 AD3d 746 [2004]). Prudénti, PJ., Ritter, Fisher and Lifson, JJ., concur.