Kimberly Blake, Plaintiff, v. KONE INC (2026)

The following papers efiled on NYSCEF were used on this motion: 25-38.

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion is determined as follows.

Background

By way of background, on April 15, 2024, Plaintiff Kimberly Blake ("Plaintiff" or "Blake") purportedly sustained injuries when an elevator door malfunctioned, thus trapping her inside its doors at Woodhull Hospital in Brooklyn, New York. Blake initially sued Schindler Elevator Corporation as the company which maintained and repaired the subject elevator; Blake moved successfully in Motion Sequence No. 1 to add Kone, Inc. ("Kone") as another entity purportedly responsible for maintenance and repairs.

Movant's Contentions

This is Defendant Kone's motion to dismiss for lack of personal jurisdiction, or in the alternative, to dismiss Plaintiff's demand for punitive damages.

The Court's order in Motion Sequence No. 1 required Blake to serve a copy of the order and the amended complaint within 10 days after entry of the order (see NY St Ct Elec Filing [NYSCEF] Doc No. 30). As such, Plaintiff was required to properly serve Kone with the amended summons and complaint in order for this Court to obtain jurisdiction over them (see Rosenblum v 170 W. Vil. Assoc., 175 AD2d 702, 703 [1st Dept 1991]). Kone argues that Plaintiff did not serve them until June 22, 2026, over six months after the Court granted her motion. Movant Defendant avers that even if the order's service deadline is ignored, Plaintiff still failed to comply with CPLR 306-b, which requires that the summons and complaint be served within 120 days after the action's commencement or the action will be dismissed.

In the alternative, Kone argues that Plaintiff's demand for punitive damages should be stricken from the complaint as Blake has failed to demonstrate that Kone engaged in conduct that rose to the high level of moral culpability necessary to support a claim for punitive damages (see Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1021 [2d Dept 2010]). Plaintiff's allegations merely assert negligence.

Opposition

Plaintiff Kimberly Blake argues that the complaint shouldn't be dismissed as to Kone, arguing that Kone doesn't object to the service itself, but rather the timing of service. Blake further cross moves pursuant to CPLR 306-b to serve the amended complaint nunc pro tunc in the interest of justice and "to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 106 [2001]). In determining whether an extension is warranted, the court may consider diligence or any other relevant factor, including prejudice to defendant (see id. at 108). Blake blames law office failure, stating that the office had an internal miscommunication regarding service of the notice of entry and service of the amended complaint upon Kone. Moreover, Kone did not allege any prejudice; discovery has not yet taken place, nor has a preliminary conference been held.

Finally, Plaintiff notes that the Second Department has held that while a separately pleaded cause of action for punitive damages is subject to dismissal, a plaintiff may properly seek punitive damages in the ad damnum clause upon a showing of the requisite conduct (see Gershman v Ahmad, 156 AD3d 868 [2d Dept 2017]). Plaintiff argues that the demand for punitive damages should not be stricken prior to discovery.

Discussion

CPLR 306-b provides that, upon motion, the Court may grant an extension of time to effect service of the complaint for good cause shown or in the interest of justice (see State of New York Mtge. Agency v Braun, 182 AD3d 63 [2d Dept 2020], quoting Leader, 97 NY2d 95 at [2001]). These are two independent, statutory standards. Good cause requires the Plaintiff to demonstrate "reasonable diligence" in attempting service (id. at 102). Here, the record establishes that Plaintiff moved to join Kone, Inc. to the complaint in November of 2025 and there was no attempt to serve Kone until June 22, 2026 (which was effectuated via the Secretary of State). If the Court determines that good cause does not exist, the Court may elect to extend time in the interest of justice instead. "[T]he court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Thompson v City of New York, 89 AD3d 1011 [2d Dept 2011]). Here, in looking at the six-month length delay of service and noting that the statute of limitations will not run until April 2027, dismissal of the cross-motion will not bar Plaintiff from litigating her potentially meritorious claims. Plaintiff's timely cross-motion and a lack of demonstrable prejudice to Defendant, while factors that weigh in her favor, do not outweigh Plaintiff's significant delay, which violates both the CPLR and the Court's order regarding service of the amended pleading.

Conclusion

It is hereby ORDERED:

Motion Sequence No. 3: Defendant Kone's 3211 (a) (8) motion to dismiss the complaint is GRANTED. The amended complaint is dismissed without prejudice.

Motion Sequence No. 4: Plaintiff Kimberly Blake's cross-motion to extend the time to serve the amended summons and complaint nunc pro tunc is DENIED.

FOOTNOTES

1.   Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.