MEUSA v. Mikhail Rakhnaev, et al., defendants. (2006)

In an action to recover damages for personal injuries, etc., the defendant BMW Financial Services appeals, and Wendel Ince and Claude Ince separately appeal, as limited by their respective briefs, from so much of an amended order of the Supreme Court, Kings County (Lewis, J.), dated November 18, 2005, as denied those branches of their respective motions which were, in effect, to vacate so much of a prior order of the same court dated December 10, 2004, as granted that branch of the plaintiffs' ex parte application pursuant to CPLR 306-b which was to extend the time to effect service of the summons and complaint upon them.

ORDERED that the amended order dated November 18, 2005, is reversed insofar as appealed from, on the law and in the exercise of discretion, with one bill of costs payable to the appellants appearing separately and filing separate briefs, those branches of the appellants' motions which were, in effect, to vacate so much of the order dated December 10, 2004, as granted the plaintiffs' ex parte application pursuant to CPLR 306-b to effect service of the summons and complaint upon the appellants are granted, and those portions of the order dated December 10, 2004, are vacated.

Contrary to the plaintiffs' contention, it is apparent that the motion of the defendant BMW Financial Services (hereinafter BMW), and the separate motion of the defendants Wendel Ince and Claude Ince (hereinafter the Inces), were, in effect, to vacate so much of the Supreme Court's prior order dated December 10, 2004, as granted the plaintiffs' ex parte application to effect service of process upon them (see Batson v. Sussman, 5 A.D.3d 619, 774 N.Y.S.2d 782).

In light of, inter alia, the extreme lack of diligence shown by the plaintiffs, including the 2 1/212 year delay between the filing of the complaint and their ex parte application to effect late service of process, the failure to tender any competent evidence substantiating the merits of their causes of action, and the lack of any explanation-other than a conclusory allegation of “law office failure”-for their failure to effect timely service, we agree with the appellants that the Supreme Court improvidently exercised its discretion in granting leave to effect late service of the summons and complaint (see Slate v. Schiavone Constr. Co., 4 N.Y.3d 816, 796 N.Y.S.2d 573, 829 N.E.2d 665;  Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  Wilkins v. Burgess, 25 A.D.3d 794, 807 N.Y.S.2d 574).

Accordingly, the complaint should have been dismissed insofar as asserted against BMW and the Inces (see Riccio v. Ghulam, 29 A.D.3d 558, 815 N.Y.S.2d 125;  CPLR 306-b).

The plaintiffs' remaining contentions are without merit.