Opinion
2018–07075 Index No. 708110/17
09-11-2019
Arkady ZHELEZNYAK, Appellant, v. GORDON & GORDON, P.C., Defendant, Leslie Nizin, etc., Respondent.
Robert Bondar, Brooklyn, NY, for appellant. Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), for respondent.
Robert Bondar, Brooklyn, NY, for appellant.
Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), for respondent.
REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
Following the commencement of this action on June 21, 2017, the defendant Leslie Nizin moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction, based upon the alleged failure by the plaintiff to serve him within 120 days after the filing of the summons and complaint (see CPLR 306–b ). The plaintiff had failed to file with the clerk of the court an affidavit of service of the summons and complaint as required by CPLR 308(4). However, in his opposition to Nizin's motion, the plaintiff submitted a copy of an affidavit of service. The Supreme Court granted Nizin's motion, and the plaintiff appeals.
While the failure to timely file an affidavit of service with the clerk of the court as required by CPLR 308(4) may, in the absence of prejudice, be corrected by court order pursuant to CPLR 2004 (see Khan v. Hernandez , 122 A.D.3d 802, 803, 996 N.Y.S.2d 667 ), in this case, the plaintiff failed to seek such relief, and the Supreme Court declined to extend this time sua sponte (see Deb v. Hayut , 171 A.D.3d 862, 863, 97 N.Y.S.3d 662 ). Accordingly, we agree with the court's determination to grant that branch of his motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction (see Deb v. Hayut , 171 A.D.3d at 863, 97 N.Y.S.3d 662 ; see also Estate of Norman v. Perlman v. Kelley , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2019 WL 4281982 [Appellate Division Docket No. 2017–03966 ; decided herewith] ).
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.
RIVERA, J.P., LASALLE, BARROS and IANNACCI, JJ., concur.