State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 522183 

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PAVEL KOMANICKY,

Appellant,

v MEMORANDUM AND ORDER

SALIM G. CONTRACTOR et al.,

Respondents.

________________________________

Calendar Date: November 18, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Catherine E. Stuckart, Binghamton, for appellant.

Levene Gouldin & Thompson, LLP, Vestal (Margaret J. Fowler

of counsel), for Salim G. Contractor and another, respondents.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert

A. Rausch of counsel), for Chief Executive Officer Albany Medical

College Faculty Group Practice and others, respondents.

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,

Albany (Mackenzie C. Monaco of counsel), for Gary Siskin,

respondent.

__________

Peters, P.J.

Appeal from an order of the Supreme Court (Lebous, J.),

entered August 10, 2015 in Broome County, which granted

defendants' motions to dismiss the complaint.

Plaintiff commenced this medical malpractice action against

defendants stemming from allegedly negligent treatment and care

he received in May and June 2011. In lieu of answering,
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defendants moved to dismiss the complaint on the basis of, among

other things, lack of personal jurisdiction. Supreme Court

granted the motions, and plaintiff appeals. 

The sole issue on this appeal is whether Supreme Court

properly dismissed the complaint for lack of personal

jurisdiction. Plaintiff first attempted to effectuate service

upon defendants by mail pursuant to the alternative service

method set forth in CPLR 312-a. Service pursuant to this method,

however, is complete only if the defendant signs and returns the

acknowledgment of receipt form (see CPLR 312-a [b]; Cordero v

Barreiro-Cordero, 129 AD3d 899, 900 [2015], lv dismissed 26 NY3d

1030 [2015]; Strong v Bi-Lo Wholesalers, 265 AD2d 745, 746

[1999]; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375, 375

[1994]; Matter of Shenko Elec. v Harnett, 161 AD2d 1212, 1213

[1990]), which was not done here by any of the 16 named

defendants. Accordingly, plaintiff was required to effect

service in another manner (see Dominguez v Stimpson Mfg. Corp.,

207 AD2d at 375; Matter of Shenko Elec. v Harnett, 161 AD2d at

1213). His subsequent attempt to effect service of the summons

and notice by personal delivery was likewise ineffectual, as such

service did not occur within 120 days of the filing of the

summons and notice (see CPLR 306-b) and, further, was not

followed up by an additional mailing of those documents within 20

days (see CPLR 308 [2]). Thus, plaintiff failed to serve any of

the defendants in the manner required by law.

To the extent that plaintiff's papers in opposition to the

motions can be read as requesting an extension of time to serve

defendants pursuant to CPLR 306-b, such affirmative relief should

have been sought by way of a cross motion on notice (see CPLR

2215; Matter of Ontario Sq. Realty Corp. v LaPlant, 100 AD3d

1469, 1469 [2012]; Lee v Colley Group McMontebello, LLC, 90 AD3d

1000, 1000-1001 [2011]; DeLorenzo v Gabbino Pizza Corp., 83 AD3d

992, 993 [2011]; Rinaldi v Rochford, 77 AD3d 720, 720 [2010]). 

In any event, plaintiff did not demonstrate the existence of

facts that would support the granting of such relief. Supreme

Court properly found that plaintiff had not shown good cause for

an extension of time (see Navarrete v Metro PCS, 137 AD3d 1230,

1231 [2016]; Mead v Singleman, 24 AD3d 1142, 1143-1144 [2005])

and, upon our careful consideration of the appropriate factors
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(see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106

[2001]), we are unpersuaded that the time for service should have

been extended "in the interest of justice" (CPLR 306-b). In

addition to plaintiff's lack of diligence in attempting to

effectuate service within the time period prescribed by CPLR

306-b (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105;

Hine v Bambara, 66 AD3d 1192, 1193 [2009]), his purported

"request" for an extension of time for service, even if it may be

deemed as such, was made more than 15 months after the 120-day

period had expired and only after defendants had moved for

dismissal (see Hine v Bambara, 66 AD3d at 1193; Matter of

Anonymous v New York State Off. of Children & Family Servs., 53

AD3d 810, 811-812 [2008], lv denied 11 NY3d 709 [2008]; City of

Albany v Wise, 298 AD2d 783, 784 [2002]). Moreover, the

existence of a meritorious cause of action has not been

established. Under these circumstances, we find no basis upon

which to disturb Supreme Court's determination (see Deep v Boies,

121 AD3d 1316, 1323-1324 [2014], lv denied 25 NY3d 903 [2015];

Hine v Bambara, 66 AD3d at 1193; Matter of Anonymous v New York

State Off. of Children & Family Servs., 53 AD3d at 812; Maiuri v

Pearlstein, 53 AD3d 816, 817 [2008]; City of Albany v Wise, 298

AD2d at 784). 

McCarthy, Egan Jr. and Lynch, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.

ENTER:

Robert D. Mayberger

Clerk of the Court