SMITH v. SOUTHSIDE HOSPITAL (2005)

In an action, inter alia, to recover damages for podiatric malpractice, the defendant Southside Hospital appeals, and the defendants Edward A. Buro, D.P.M., s/h/a Edward Buro, and Mayfair Foot Care, PLLC, s/h/a 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 plaintiff's 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 plaintiff's cross motion to extend his time within which to effect service (see Leadbeater v. Beaubrun, 299 A.D.2d 458, 749 N.Y.S.2d 894;  see also Henig v. Good Samaritan Med. Ctr., 301 A.D.2d 571, 753 N.Y.S.2d 863;  cf. Scarabaggio v. Olympia & York Estates Co., 278 A.D.2d 476, 718 N.Y.S.2d 392, affd. sub nom. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  White v. Maradiaga, 8 A.D.3d 559, 778 N.Y.S.2d 695;  Chiaro v. D'Angelo, 7 A.D.3d 746, 776 N.Y.S.2d 898).