theCPLRblog

Service round-up

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR § 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to serve the defendant at his dwelling. Contrary to the defendant's contention, the three attempts to serve him at his dwelling at different times and on different days, including an attempt on an early weekday morning and an attempt during midday Saturday, were sufficient to constitute "due diligence" within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972, 973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was no indication that the defendant worked Saturdays or that his workplace was readily ascertainable, the plaintiff was not required to attempt to serve the defendant at his workplace (see Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107 AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly, the process server properly resorted to service of process pursuant to CPLR 308(4), and the defendant's motion to vacate the default judgment for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar as asserted against the corporate defendants on the ground of lack of jurisdiction under either CPLR 301 or 302. Rather, the defendants contended that the complaint should be dismissed insofar as asserted against the corporate defendants based on improper service of process. By failing to contend that there was no jurisdiction under either CPLR 301 or 302 over the corporate defendants in their cross motion, the defendants waived their challenge to whether the corporate defendants were subject to personal jurisdiction (see Weisener v Avis Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d 649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff's motion for leave to enter a default judgment should have been denied and the complaint dismissed as against all defendants since the plaintiff failed to present proof of valid service of the summons and complaint as required by CPLR 312-a(a) and (b). The plaintiff submitted evidence that he served the defendants by certified mail, return receipt requested. However, he presented no evidence that copies of the summons and complaint were sent to the defendants, by first-class mail, together with, inter alia, two copies of a statement of service by mail and acknowledgment of receipt, and that the signed acknowledgment of receipts were mailed or delivered to the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper service, no personal jurisdiction was acquired over the defendants (see Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375, 375).

The CPLR R. 3211 Roundup: It's going to be loooong.

Because I can't let all of these decisions keep on piling up, I'm doing a 3211 dump.  This will probably be followed by a 300's dump, and maybe a 3212 dump.

There is a lot here, but it's worth skimming.  Most of the cases related to improper service or conversion (3211-->3212).

Garner v China Natural Gas, Inc., 2010 NY Slip Op 02095 (App. Div., 2nd, 2010)

Although the defendants' motion was made pursuant to CPLR 3211, the Supreme Court, in effect, converted that branch of the motion which was to dismiss the cause of action alleging breach of contract into a motion for summary judgment pursuant to CPLR 3212. This was error (see Mihlovan v Grozavu, 72 NY2d 506; Bowes v Healy, 40 AD3d 566). Thus, this Court will apply to the entire complaint the standards applicable to a motion to dismiss pursuant to CPLR 3211 (see Neurological Serv. of Queens, P.C. v Farmingville Family Med. Care, PLLC, 63 AD3d 703, 704).

In assessing a motion to dismiss made pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and are accorded every favorable inference (see Riback v Margulis, 43 AD3d 1023). However, bare legal conclusions, as well as factual claims flatly contradicted by the record, are not entitled to any such consideration (id.).

He-Duan Zheng v American Friends of the Mar Thoma Syrian Church of Malabar, Inc., 67 AD3d 639 (App. Div., 2nd, 2009)

The defendant Mar Thoma Church (hereinafter the Church) alleged that the plaintiff failed to obtain leave of court prior to serving a supplemental summons and amended complaint naming it as a defendant in this action (see CPLR 1003). However, the failure to obtain prior leave of court is a waivable defect, and is not fatal in all instances (see Gross v BFH Co., 151 AD2d 452 [1989]; see also Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; cf. Public Adm'r of Kings County v McBride, 15 AD3d 558 [2005]).

In this case, the Church failed to raise its defense of improper joinder in a timely, pre-answer motion to dismiss the complaint, and also failed to assert such defense in its answer. Accordingly, it waived the defense (see CPLR 3211 [a] [8]; [e]). The defense that the Church did raise, that the court lacked jurisdiction over it, "by reason of the manner in which the summons was served," implicates the distinct personal jurisdictional defense of improper service of process, and was insufficiently specific to place the plaintiff on notice that the Church was complaining of improper joinder (see McDaniel v Clarkstown Cent. Dist. No. 1, 83 AD2d 624, 625 [1981]).

In any event, the Church waived its improper joinder defense by its conduct in [*2]attending and participating in a preliminary conference setting forth a schedule for discovery, and in waiting until after the applicable statute of limitations had expired prior to making its motion to dismiss (see Tarallo v Gottesman, 204 AD2d 303 [1994]; Santopolo v Turner Constr. Co., 181 AD2d 429 [1992]; Gross v BFH Co., 151 AD2d 452 [1989]). Moreover, the Church cannot claim surprise or prejudice due to the plaintiff's delay in seeking leave to add it as a defendant in light of the statements made by its Treasurer to the investigators for its insurance carrier indicating that the Church was aware of the subject accident on the very day that it occurred.

Pistolese v William Floyd Union Free Dist., 69 AD3d 825 (App. Div., 2nd, 2010)

In late June 2008, on the last day of the school year, the infant plaintiff allegedly was assaulted by other youths, as he walked home from school with friends rather than ride a school bus. The incident allegedly occurred along Montauk Highway, some 30 minutes after the infant plaintiff left the school grounds. Although this was a pre-answer motion, under the facts of this case, the Supreme Court should have treated it as one for summary judgment pursuant to CPLR 3211 (c) since the defendant not only requested such treatment, but both the defendant and the plaintiffs deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; see generally McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]).

While schools are under a duty to adequately supervise the students in their charge, they are not insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51 AD3d 782, 783 [2008]; Maldonado v Tuckahoe Union Free School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). "[A] school's duty is coextensive with, and concomitant with, its physical custody and control over a child" (Stagg v City of New York, 39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection" (Vernali v Harrison Cent. School Dist., 51 AD3d at 783; see Pratt v Robinson, 39 NY2d 554, 560 [1976]). [*2]

Here, the incident occurred at a time when the injured plaintiff was no longer in the defendant's custody or under its control and was, thus, outside of the orbit of its authority. Accordingly, the defendant demonstrated its prima facie entitlement to judgment as a matter of law (see Fotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534 [2007]; Morning v Riverhead Cent. School Dist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d 640, 641 [2003]).

In opposition, the plaintiffs failed to raise a triable issue of fact. They also failed to articulate any nonspeculative basis to believe that discovery might yield evidence warranting a different result (see Stagg v City of New York, 39 AD3d at 534).

Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 (App. Div., 1st, 2009)

We have considered plaintiffs' argument that the court improperly converted a breach of contract action into a declaratory judgment action and, without CPLR 3211 (c) notice, converted a motion by [*2]defendant to dismiss the complaint into a motion for summary judgment, and find it to be unavailing (see CPLR 2002; Shah v Shah, 215 AD2d 287, 289 [1995]). This case contains no factual disputes, and by submitting before the Supreme Court every relevant piece of documentary evidence, along with affidavits of representatives of both parties discussing the application of such evidence, the parties have charted a course for summary judgment. Accordingly, the court properly entered a declaratory judgment in favor of defendants.

Today in the First Department (22 NYCRR 202.2, CPLR R. 3211, CPLR R. 3212, CPLR § 306-b, CPLR § 3121, SOL)

Several decisions popped out of the Appellate Division, First Department,  today.  In a break from my normal posting style, where I try to split posts between sections and rules, I'm going to post the few decisions that I found interesting.

Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (App. Div., 1st, 2009)

Even had St. Barnabas met its initial burden, plaintiff's expert's submission raises triable issues of fact regarding the hospital's negligence (see DaRonco v White Plains Hosp. Ctr., 215 AD2d 339 [1995]). The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion. Venue should be retained in Bronx County. The only ground for the motion to change venue was the dismissal of the complaint against St. Barnabas, and the complaint has been reinstated.

The motion to vacate plaintiff's note of issue, served more than 20 days after service of that note, was properly denied as untimely (see 22 NYCRR 202.21[e]), "no showing of special circumstances or adequate reason for the delay having been offered" (Arnold v New York City Hous. Auth., 282 AD2d 378 [2001]). Nor did the court err in finding that defendant Orin failed to demonstrate good cause for an extension of time in which to file his motion for summary judgment (CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652 [2004]).

Johnson v Concourse Vil., Inc., 2010 NY Slip Op 00010 (App. Div., 1st, 2009)

Although plaintiff's counsel served her pleadings just one day after the applicable 120-day service period expired (see CPLR 306-b), and counsel offered proof that he attempted to arrange for service with eight days remaining out of the 120-day period, he nonetheless failed to show diligence in his efforts to effect service, particularly as the three-year statute of limitations (CPLR 214[5]) had already expired, and he did not follow up with the process server regarding completion of service until after the 120-day service period had expired. There was no evidence to indicate that the corporate defendants could not be located, or that they could not be readily served through the Secretary of State. Furthermore, counsel waited until after defendants moved to dismiss before he cross-moved for an extension of the time to serve some several months later. Such evidence of lack of diligence undermines plaintiff's "good cause" argument in support of her extension request (see generally Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

Nor is a grant of an extension to serve the pleadings warranted in the interest of justice. The circumstances presented, including that the statute of limitations expired, plaintiff's lack of diligence in prosecuting this action, the lack of probative evidence offered as to the claim's merit, the vague allegations of injury, the lack of notice given of the claim for more than three years and three months, the prejudice to defendants and the several month delay in moving for an extension of the time to serve, demonstrate that the dismissal of this action was appropriate (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Posada v Pelaez, 37 AD3d 168 [2007]; compare de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

One day late.

Suss v New York Media, Inc., 2010 NY Slip Op 00011 (App. Div., 1st, 2009)

We reject plaintiff's argument that such evidence fails to show, prima facie, that the issue first was published on April 29. The affidavits submitted by defendants were made with personal knowledge of the issue's distribution date; the distributor's affidavit was the proper vehicle for the submission of photographs taken by him and his staff (see H.P.S. Capitol v Mobil Oil Corp., 186 AD2d 98, 98 [1992]); and the photographs, as enhanced and highlighted in defendants' reply, clearly depict what they are claimed to depict. In opposition, plaintiff failed to submit any evidence of a later publication.

We also reject plaintiff's argument that unless the court gives CPLR 3211(c) notice of its intention to do so, it may not consider nondocumentary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Alverio v New York Eye & [*2]Ear Infirmary, 123 AD2d 568 [1986]; Lim v Choices, Inc., 60 AD3d 739 [2009]).

Welter v Feigenbaum, 2010 NY Slip Op 00012 (App. Div., 1st, 2009)

A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney's CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]). Defendant's effort to limit the scope of discovery has simply focused the issue on whether or not he has the virus. This issue is relevant to — and potentially dispositive of — the action. If the test is negative, the case will be subject to dismissal. If, on the other hand, it is positive, defendant will have an opportunity to prove his affirmative defenses that he did not have the virus in 2002, or was unaware that he had it or was asymptomatic at the time of alleged transmittal to plaintiff.

All concur except Andrias and McGuire, JJ., who concur in a separate memorandum by McGuire, J. as follows:

McGUIRE, J. (concurring)

We write separately to emphasize that we express no view on the issue of whether, if the test is positive, it is admissible at trial (see People v Scarola, 71 NY2d 769, 777 [1988] ["(e)ven where technically relevant evidence is admissible, it may still be excluded by the trial court in the [*2]exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury"]).

The herpes case.

CPLR R. 2221(e) "Retention of New Expert not Legitimate Basis for Renewal"

CPLR R. 2221(e) Motion for Leave to Renew

Burgos v Rateb, 2009 NY Slip Op 05738 (App. Div., 2nd, 2009)

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew, as the plaintiff failed to offer a reasonable justification for her failure to present the evidence offered in support of renewal in her opposition to that branch of Shahin's original motion which was for summary judgment dismissing the complaint insofar as asserted against him (see CPLR 2221[e]; Orlando v City of New York, 21 AD3d 357). The retention of a new expert is not a legitimate basis for renewal; renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831; see Reshevsky v United Water N.Y., Inc., 46 AD3d 532; Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344).

The bold is mine.

CPLR R.3211 Roundup with a smattering of CPLR § 308. CPLR § 205(a) too.

These are some of the more interesting CPLR R. 3211 decision's I've found in the past few weeks.  At least two revolve around CPLR § 308 ( Personal service upon a natural person). Another discussed CPLR § 306-b.  One decision discussed the preclusive effect of a CPLR R. 3211(a)(7) dismissal (in that case none), adding that it received the tolling benefit of CPLR § 205(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

Fitzgerald v Federal Signal Corp., 2009 NY Slip Op 05288 (App. Div., 2nd, 2009)

"Upon a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the court must determine whether from the four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 563, quoting Morad v Morad, 27 AD3d 626, 627; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v MartÍnez, 84 NY2d 83, 87-88). "In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint" (Sheridan v Carter, 48 AD3d 444, 445; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375).

Viewing the allegations in the complaint as true, and according the plaintiffs the benefit of every reasonable inference, the Supreme Court properly determined that the plaintiffs failed to state a cause of action to recover damages for strict products liability based on Federal's alleged duty and failure to warn them, as the risk alleged is "open and obvious" and "readily apparent as a matter of common sense" (Liriano v Hobart Corp., 92 NY2d 232, 241-242; see Warlikowski v Burger King Corp., 9 AD3d 360, 362; Schiller v National Presto Indus., 225 AD2d 1053, 1054). "There is no duty to warn of an open and obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense" (O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 514; see Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102; Vail v KMart Corp., 25 AD3d 549, 551).

Stubbolo v City of New York, 2009 NY Slip Op 04971 (App. Div., 1st, 2009)

The motion court erred in denying dismissal of plaintiffs' 42 USC § 1983 claim based on the theory of fabrication of evidence prior to the initiation of the grand jury proceedings and prosecutions against plaintiff Frank J. Stubbolo under Indictment Nos. 724/02 and 4133/03. The complaint fails to sufficiently allege such prosecutorial misconduct and, as a result, the claim is barred by absolute prosecutorial immunity (see Buckley v Fitzsimmons, 509 US 259, 269-270 [1993]; Imbler v Pachtman, 424 US 409, 430-31 [1970]; Hill v City of New York, 45 F3d 653, 661 [2d Cir 1995]).

Contrary to plaintiffs' contentions on appeal, the motion court properly dismissed [*2]plaintiffs' remaining federal and state law claims as time-barred or for failure to state a cause of action (CPLR 3211[a][1], [7]).

HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 2009 NY Slip Op 04964 (App. Div., 1st, 2009)

The court dismissed the legal malpractice complaint, pursuant to CPLR 3211(a)(1), based on documentary evidence from which it concluded that the state of the law at the time the advice was given was unsettled and defendants therefore had not " failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession'" at that time (quoting Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]).

We conclude, however, that the state of the law was not so unsettled at the time the advice was given as to bar as a matter of law plaintiffs' claim that a reasonably skilled attorney would have advised that the CDs were or might be entitled to common-law copyright protection and would not have advised that the release of the CDs would not result in any copyright liability. Although defendant maintains that it did advise plaintiffs of the possibility of common-law liability and did not advise plaintiffs that the release of the CDs would not result in any copyright liability, we must accept the facts alleged in the complaint as true and accord plaintiffs the benefit of every possible favorable inference (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & [*2]Steiner, 96 NY2d 300, 303 [2001]). The determination whether defendant exercised the requisite level of skill and care must await expert testimony (compare Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005] [expert testimony required], with Darby & Darby, supra [legal malpractice counterclaim dismissed on summary judgment]).

CPLR § 306-b

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

Ambrosio v Simonovsky, 2009 NY Slip Op 03679 (App. Div., 2nd, 2009)

In opposition to the defendant's motion to dismiss the complaint pursuant to CPLR 306-b and in support of the plaintiff's cross motion to extend his time to serve the summons and complaint pursuant to that statute, the plaintiff was required to show either good cause for his failure to serve the defendant with the summons and complaint within 120 days after their filing or that an extension of time to effect service should be granted in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107; Riccio v Ghulam, 29 AD3d 558, 560). The plaintiff failed to show good cause for his failure since he admittedly made no attempt to serve the defendant within 120 days after the filing of the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105; Valentin v Zaltsman, 39 AD3d 852; Riccio v Ghulam, 29 AD3d at 560).

Furthermore, the plaintiff failed to show that an extension of time to serve the defendant was warranted in the interest of justice in view of the lack of diligence shown by the plaintiff, including the one-year delay between the time the summons and complaint were filed and the time the cross motion to extend his time to serve the summons and complaint was made, the 9½- month delay [*2]between the expiration of the statute of limitations and the defendant's receipt of notice of the action, the failure to make any showing of merit, and the lack of an excuse for the failure to effect timely service (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817; American Tel. & Tel. Co. v Schnabel Found. Co., 38 AD3d 580; Ortiz v Malik, 35 AD3d 560, 560-561; Meusa v BMW Fin. Servs., 32 AD3d 830, 831).

Garcia v Simonovsky, 2009 NY Slip Op 03691 (App. Div., 2nd, 2009)

In opposition to the respondent's motion to dismiss the complaint pursuant to CPLR 306-b and in support of the plaintiff's cross motion to extend her time to serve the summons and complaint pursuant to that statute, the plaintiff was required to show either good cause for her failure to serve the respondent with the summons and complaint within 120 days after their filing or that an extension of time to effect service should be granted in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-107; Riccio v Ghulam, 29 AD3d 558, 560). The plaintiff failed to show good cause for her failure since she admittedly made no attempt to serve the respondent within 120 days after the filing of the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105; Valentin v Zaltsman, 39 AD3d 852; Riccio v Ghulam, 29 AD3d at 560).

Furthermore, the plaintiff failed to show that an extension of time to serve the defendant was warranted in the interest of justice in view of the lack of diligence shown by the plaintiff, including [*2]the one-year delay between the time the summons and complaint were filed and the time the cross motion to extend her time to serve the summons and complaint was made, the 9½- month delay between the expiration of the statute of limitations and the respondent's receipt of notice of the action, the failure to make any showing of merit, and the lack of an excuse for the failure to effect timely service (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817; American Tel. & Tel. Co. v Schnabel Found. Co., 38 AD3d 580; Ortiz v Malik, 35 AD3d 560, 560-561; Meusa v BMW Fin. Servs., 32 AD3d 830, 831).

The bold is mine.

CPLR § 306-b; § 207

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 207. Defendant's absence from state or residence under false name

Shelkowitz v Rainess, 2008 NY Slip Op 09906 (App. Div., 1st)

Dismissal of the complaint was proper where plaintiff did not effect service of the summons and complaint upon defendant within 120 days after the filing of the action (CPLR 306-b). Nor is an extension of time for service warranted in the "interest of justice" (id.). The request for an extension of time was not made until opposition to defendant's cross motion to dismiss, which was approximately 20 months after the filing of the action (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Pecker Iron Works, Inc. v Namasco Corp., 37 AD3d 367 [2007]). Furthermore, contrary to plaintiff's contention, CPLR 207 is not applicable as there is no evidence that defendant was either absent from the state within the meaning of the statute, or that he was listed under a false name.