BAIONE v. Stuart Fourman, etc., et al., appellants. (2005)

In an action to recover damages for medical malpractice, the defendants Stuart Fourman, Stephen Kottmeier, George Sander Davis, as Executor of the Estate of James Davis, David Cooling, Susana Fuchs, Robert Barraco, Javier Perez, John Brebbia, Fred Orcutt, Collin Brathwaite, Jeanne Choi, Michael Imperato, Lawrence Kass, Mathew Rifkin, Thomas Smith, Robert Peyster, and Arthur P. Rossiello, s/h/a John Doe # 8 SUSB ID # 170266, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated March 21, 2003, as granted that branch of the plaintiff's motion which was for an extension of time to effect service of process upon them pursuant to CPLR 306-b, and the defendant Jen Franz separately appeals, as limited by her brief, from so much of the same order as, upon her default in opposing the motion, granted that branch of the plaintiff's motion which was for an extension of time to effect service of process upon her pursuant to CPLR 306-b.

ORDERED that the appeal by the defendant Jen Franz from so much of the order as granted that branch of plaintiff's motion which was for an extension of time to effect service of process upon her pursuant to CPLR 306-b is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511);  and it is further,

ORDERED that the order is reversed insofar as appealed from by the defendants Stuart Fourman, Stephen Kottmeier, George Sander Davis, as Executor of the Estate of James Davis, David Cooling, Susana Fuchs, Robert Barraco, Javier Perez, John Brebbia, Fred Orcutt, Collin Brathwaite, Jeanne Choi, Michael Imperato, Lawrence Kass, Mathew Rifkin, Thomas Smith, Robert Peyster, and Arthur P. Rossiello, s/h/a John Doe # 8 SUSB ID # 170266, that branch of the plaintiff's motion which was for an extension of time to effect service of process upon those defendants is denied, and the complaint is dismissed insofar as asserted against those defendants;  and it is further,

ORDERED that one bill of costs is awarded to the defendants Stuart Fourman, Stephen Kottmeier, George Sander Davis, as Executor of the Estate of James Davis, David Cooling, Susana Fuchs, Robert Barraco, Javier Perez, John Brebbia, Fred Orcutt, Collin Brathwaite, Jeanne Choi, Michael Imperato, Lawrence Kass, Mathew Rifkin, Thomas Smith, Robert Peyster, and Arthur P. Rossiello, s/h/a John Doe # 8 SUSB ID # 170266.

The defendant Jen Franz did not oppose the plaintiff's motion for an extension of time to effect service of process pursuant to CPLR 306-b.   No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511;  Coneys v. Johnson Controls, Inc., 11 A.D.3d 576, 782 N.Y.S.2d 669;  Marino v. Termini, 4 A.D.3d 342, 771 N.Y.S.2d 537;  Adamson v. Evans, 283 A.D.2d 527, 724 N.Y.S.2d 760).   Thus, the appeal by Franz must be dismissed.

However, the Supreme Court improvidently exercised its discretion in granting that branch of the motion which was for an extension of time to effect service of process upon the remaining appellants notwithstanding the expiration of the statute of limitations.   The record demonstrates a lack of diligence in effecting service upon those appellants and a complete failure to establish the existence of a meritorious cause of action (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291, 761 N.E.2d 1018).   Accordingly, an extension of time to effect service of process upon them was not warranted, either for good cause or in the interest of justice (see Stuart v. Gimpel, 2 A.D.3d 625, 768 N.Y.S.2d 340;  Henig v. Good Samaritan Med. Ctr., 301 A.D.2d 571, 753 N.Y.S.2d 863;  Matter of DeSilva v. Town of Brookhaven, 299 A.D.2d 409, 749 N.Y.S.2d 730;  Rihal v. Kirchhoff, 291 A.D.2d 548, 737 N.Y.S.2d 872).