Appellate Division: Second Judicial Department

M103800

S/nl

PETER B. SKELOS, J.P.

HOWARD MILLER

JOHN M. LEVENTHAL

L. PRISCILLA HALL, JJ.

2009-09429, 2009-11717, 2009-11718 Patrick Carr, appellant, v Verna B. Neilson, defendant, Elena B. Smith, respondent. (Index No. 08-17135)

DECISION & ORDER ON MOTION

Applications by the plaintiff pursuant to CPLR 5704 to review (1) an ex parte order of the Supreme Court, Westchester County (Giacomo, J.), dated May 18, 2009, which denied his application for leave to effect alternative service of the summons and complaint upon the defendant Elena B. Smith pursuant to CPLR 308(5), without prejudice to renew (2) an ex parte order of the same court dated August 3, 2009, which denied his application for leave to extend his time to serve the summons and complaint upon the defendant Elena B. Smith and, upon renewal, denied his application for leave to effect alternative service of the summons and complaint upon the defendant Elena B. Smith pursuant to CPLR 308(5), and (3) an ex parte order of the same court dated October 29, 2009, which denied his application for leave to reargue.

ORDERED that on the court's own motion, the plaintiff's notices of appeal are treated as applications for relief pursuant to CPLR 5704(a); and it is further,

ORDERED that the application to review the ex parte order dated May 18, 2009, is dismissed, as that order was superseded by the ex parte order dated August 3, 2009, made upon renewal; and it is further,

ORDERED that the applications to review the ex parte orders dated August 3, 2009, and October 29, 2009, are denied.

Under the circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's application to extend the time to serve the summons and complaint upon the defendant Elena B. Smith pursuant to CPLR 306-b. Notwithstanding the expiration of the statute of limitations, the facts do not support the plaintiff's contention that he is entitled to an extension based upon good cause or in the interest of justice (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106; Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32). The papers submitted in support of the applications reflect a lack of diligence in attempting to effect service, the failure to move promptly for an extension of time, and a failure to demonstrate the existence of a meritorious defamation claim against this particular defendant (see Gem Flooring, Inc. v Kings Park Indus., Inc., 27 AD3d 617; Winter v Irizarry, 300 AD2d 472, 473; Rihal v Kirchhoff, 291 AD2d 548).

In light of our determination, the Supreme Court properly denied the plaintiff's application for leave to effect service of the summons and complaint by alternative means pursuant to CPLR 308(5).

SKELOS, J.P., MILLER, LEVENTHAL and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court