Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 1, 2026

2024-05345, 2024-10494, (Index No. 150387/22)

Mark C. Dillon, J.P.

Angela G. Iannacci

Deborah A. Dowling

James P. McCormack, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for veterinary malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated May 1, 2024, and (2) an order of the same court dated September 9, 2024. The order dated May 1, 2024, granted the separate motions of the defendant Patricia Smillie-Scavelli, the defendants Garden State Veterinary Specialists, Inc., Garden State Veterinary Services, Inc., Garden State Veterinary Specialists, KTDM, a Limited Liability Company, TPKD, LLC, Thomas Scavelli, Ron Achiel, and Matias Larrosa, and the defendants Greater Staten Island Veterinary Services, P.C., Greater Staten Island Veterinary Services, and Allison Szarejko pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against each of them for lack of personal jurisdiction, and denied the plaintiff's cross-motion pursuant to CPLR 306-b to extend the time to serve the defendants with the summons with notice, to consolidate this action with another action, and for leave to enter a default judgment against certain defendants. The order dated September 9, 2024, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew (1) her opposition to the separate motions of the defendant Patricia Smillie-Scavelli, the defendants Garden State Veterinary Specialists, Inc., Garden State Veterinary Services, Inc., Garden State Veterinary Specialists, KTDM, a Limited Liability Company, TPKD, LLC, Thomas Scavelli, Ron Achiel, and Matias Larrosa, and the defendants Greater Staten Island Veterinary Services, P.C., Greater Staten Island Veterinary Services, and Allison Szarejko pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against each of them for lack of personal jurisdiction and (2) her cross-motion pursuant to CPLR 306-b to extend the time to serve the defendants with the summons with notice, to consolidate this action with another action, and for leave to enter a default judgment against certain defendants.

ORDERED that the order dated May 1, 2024, is affirmed; and it is further,

ORDERED that the order dated September 9, 2024, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

On March 1, 2022, the plaintiff filed a summons with notice alleging, inter alia, veterinary malpractice against, among others, the defendants Garden State Veterinary Specialists, Inc., Garden State Veterinary Services, Inc., Garden State Veterinary Specialists, KTDM, a Limited Liability Company, TPKD, LLC, Patricia Smillie-Scavelli, Thomas Scavelli, Ron Achiel, and Matias Larrosa (hereinafter collectively the NJ defendants), and the defendants Greater Staten Island Veterinary Services, P.C., Greater Staten Island Veterinary Services, and Allison Szarejko (hereinafter collectively the SI defendants). At the same time, the plaintiff was engaged in litigation in New Jersey against the same defendants based on similar allegations.

On September 27 and 28, 2023, more than 18 months after the plaintiff filed the summons with notice, the plaintiff served the defendants with the summons with notice. Smillie-Scavelli, the remainder of the NJ defendants, and the SI defendants separately moved pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against each of them for lack of personal jurisdiction due to untimely service. The plaintiff cross-moved pursuant to CPLR 306-b to extend the time to serve the defendants with the summons with notice, to consolidate this action with another action, and for leave to enter a default judgment against certain defendants. In an order dated May 1, 2024, the Supreme Court granted the separate motions and denied the cross-motion. The plaintiff appeals from this order.

Thereafter, the plaintiff moved, among other things, for leave to renew her opposition to the separate motions of Smillie-Scavelli, the remainder of NJ defendants, and the SI defendants pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against each of them and her cross-motion. In an order dated September 9, 2024, the Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for leave to renew. The plaintiff appeals from this order.

"Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for 'good cause shown' or 'in the interest of justice'" (BAC Home Loans Servicing, L.P. v Tessler, 208 AD3d 619, 621, quoting CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Wells Fargo Bank, N.A. v Fameux, 201 AD3d 1012, 1014). Under the interest of justice standard, "the 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 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 [the] defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106).

Here, the plaintiff failed to demonstrate reasonable diligence in attempting service upon the defendants, and therefore, she was not entitled to an extension for good cause (see Wells Fargo Bank, N.A. v Fameux, 201 AD3d at 1014; Butters v Payne, 176 AD3d 1028, 1028-1029). Additionally, the plaintiff failed to establish that an extension of time to serve the defendants was warranted in the interest of justice. The plaintiff did not exercise diligence in serving the defendants or in moving for leave to extend the time to do so, having waited more than six months after the statute of limitations had expired to cross-move for such relief, and only after Smillie-Scavelli, the remainder of the NJ defendants, and the SI defendants moved to dismiss the action insofar as asserted against each of them. Moreover, the defendants had no notice of this action until September 2023, more than18 months after the filing of the summons with notice. Finally, although the plaintiff contends that the defendants were not prejudiced because they were actively litigating similar causes of action in New Jersey, she failed to provide any evidence that the defendants were actually aware of this action prior to service in September 2023. Accordingly, the Supreme Court properly granted [*2]the separate motions of Smillie-Scavelli, the remainder of the NJ defendants, and the SI defendants pursuant to CPLR 3211(a)(8) to dismiss the action insofar as asserted against each of them, and properly denied that branch of the plaintiff's cross-motion which was pursuant to CPLR 306-b to extend the time to serve the defendants with the summons with notice (see Pierre v Grueso, 219 AD3d 1535, 1536; Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605, 607).

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2]). The motion must set forth a reasonable justification for the failure to present such facts on the prior motion (see id. § 2221[e][3]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (MTGLQ Invs., L.P. v Balan, 203 AD3d 717, 718-719; see Federal Natl. Mtge. Assn. v Sakizada, 153 AD3d 1236, 1237). Here, in support of that branch of the plaintiff's motion which was for leave to renew, the plaintiff failed to present new facts not offered on the prior motions and cross-motion that would change the prior determinations (see McGowan-Amandola v Federal Realty Inv. Trust, 191 AD3d 868, 870; Jian Feng Zhang v Roman, 186 AD3d 1625, 1626). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew.

The parties' remaining contentions either are not properly before this Court, are without merit, or need not be reached in light of our determination.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court