IN RE: DELAWARE OPERATIONS ASSOCIATES LLC (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: In this CPLR article 78 proceeding seeking to annul a determination by respondent New York State Department of Health (DOH) that petitioner was ineligible for Medicaid reimbursement for the costs of medical assistance provided to one of its residents, petitioner appeals from an order and judgment that, inter alia, granted DOH's motion to dismiss the petition on the ground that petitioner failed to timely serve the notice of petition and petition and denied petitioner's cross motion for an extension of time to effectuate service. We affirm.

Petitioner contends that Supreme Court should have granted its cross motion for an extension of time to effectuate service pursuant to CPLR 306-b “in the interest of justice.” It is well settled that the determination to grant such “[a]n extension of time for service is a matter within the court's discretion” (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001]; see Moss v. Bathurst, 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011]). Factors the court may consider in making that determination include petitioner's “diligen[t efforts at service] or lack thereof, along with ․ [the] expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a [petitioner's] request for the extension of time, and prejudice to the [respondent]” (Leader, 97 N.Y.2d at 105-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018).

After weighing the relevant factors, we conclude that the court did not abuse its discretion in denying the cross motion (see generally Swaggard v. Dagonese, 132 A.D.3d 1395, 1396, 18 N.Y.S.3d 258 [4th Dept. 2015]; Matter of Ontario Sq. Realty Corp. v. LaPlant, 100 A.D.3d 1469, 1469, 953 N.Y.S.2d 543 [4th Dept. 2012]; Moss, 87 A.D.3d at 1374, 930 N.Y.S.2d 695). Here, petitioner's lack of diligence in attempting to effectuate service—i.e., the absence of any evidence that petitioner attempted to serve DOH, among others, during the relevant time frame—weighs heavily in favor of denying its cross motion (cf. Moundrakis v. Dellis, 96 A.D.3d 1026, 1027, 947 N.Y.S.2d 575 [2d Dept. 2012]; Stryker v. Stelmak, 69 A.D.3d 454, 455, 892 N.Y.S.2d 102 [1st Dept. 2010]). We note that petitioner did not promptly request an extension of time; indeed, it did not even discover its error until after DOH moved to dismiss the petition on the ground of untimely service.

Also heavily weighing against granting an extension of time is the lack of merit to the underlying proceeding (see generally Pierce v. Village of Horseheads Police Dept., 107 A.D.3d 1354, 1357-1358, 970 N.Y.S.2d 95 [3d Dept. 2013]). Given the deference accorded to an agency's interpretation of its own regulations (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273, 280, 763 N.Y.S.2d 232, 794 N.E.2d 14 [2003]), it is highly unlikely that the court would have annulled DOH's determination that petitioner was not entitled to reimbursement through Medicaid of the cost of providing medical care to its resident because she did not qualify for the undue hardship exception (see Matter of Conners v. Berlin, 105 A.D.3d 1208, 1210-1211, 964 N.Y.S.2d 680 [3d Dept. 2013]; see also 18 NYCRR 360-4.10[a][12][iii]). To the extent that the remaining factor favors granting petitioner an extension of time, we conclude that it does not outweigh the factors supporting denial.