                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   522183
________________________________

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,
                              -2-                522183

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
                              -3-                  522183

(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
