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MONICA LEADBEATER, ETC., APPELLANT, v. YVON C. BEAUBRUN, DEFENDANT, BROOKLYN HOSPITAL-CALEDONIAN HOSPITAL, RESPONDENT.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff contends that the Supreme Court should have granted her cross motion to extend her time to serve the defendant Brooklyn Hospital-Caledonian Hospital (hereinafter the hospital) and to validate the late service of the summons and complaint on the hospital pursuant to CPLR 306-b. However, the plaintiff did not offer a reasonable excuse for her failure to serve the hospital within 120 days after commencement of the action. Moreover, despite the fact that the hospital raised the failure to effect service within the statutory time frame as an affirmative defense in its July 1998 answer, the plaintiff did not seek to validate the late service until after the hospital moved for summary judgment in February 2001. In addition, the record is insufficient to determine whether the plaintiff has a potentially meritorious medical malpractice claim against the hospital, and an extensive period of time has elapsed since the accrual of the claim. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion (see Hafkin v. North Shore Univ. Hosp., 279 A.D.2d 86, affd sub nom. Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95; see also Ludemann v. Maisel, 292 A.D.2d 428; Rihal v. Kirchhoff, 291 A.D.2d 548; Carbonaro v. Maimonides Hosp., 289 A.D.2d 437, 438).

SMITH, J.P., SCHMIDT, ADAMS and COZIER, JJ., concur.

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LEADBEATER v. BEAUBRUN
(Nov 18, 2002)