FIEL v. Alfred Martinez, etc., respondent. (2006)

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County (Tanenbaum, J.), entered June 1, 2005, which denied their motion pursuant to CPLR 306-b for leave to extend their time to serve the defendant Alfred Martinez with the summons and complaint and is in favor of that defendant and against her dismissing the complaint insofar as asserted against that defendant.

ORDERED that the order and judgment is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion pursuant to CPLR 306-b for leave to extend their time to serve the defendant Alfred Martinez with the summons and complaint (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291, 761 N.E.2d 1018).   The plaintiffs failed to establish their entitlement to an extension in the interest of justice as they demonstrated an extreme lack of diligence in their attempts to serve Martinez (see Slate v. Schiavone Constr. Co., 4 N.Y.3d 816, 817, 796 N.Y.S.2d 573, 829 N.E.2d 665).   Moreover, other relevant factors, including the plaintiffs' failure to establish that they had a meritorious claim, the prejudice to Martinez if an extension were to be granted, and the plaintiffs' protracted delay in making the instant motion, demonstrated that the plaintiffs were not entitled to the relief sought (see Irwin v. La Guardia Hosp., 23 A.D.3d 349, 805 N.Y.S.2d 549;  Kazimierski v. New York Univ., 18 A.D.3d 820, 796 N.Y.S.2d 638).