In Khedouri v. Equinox, First Department affirmed the dismissal of plaintiff’s complaint because plaintiff failed to serve the complaint within 120 days of filing as prescribed by the CPLR. Moreover the court found that granting the plaintiff an extension of time was not in the interests of justice, as she claimed to have been injured in a fitness center competition, an activity for which she voluntarily assumed the risk. Finally, the court also denied plaintiffs request to serve a supplemental summons and amended complaint, as plaintiff’s amended complaint was served more than 20 days after service of defendant’s answer and without leave of court, which is not allowed under the CPLR.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04110.htm