| Cooper v New York City Bd. of Educ. |
| 2008 NY Slip Op 07607 [55 AD3d 526] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Michelle Cooper et al., Appellants, v New York City Board ofEducation, Defendant, and Italian American Civil Rights League, Inc.,Respondent. |
—[*1] Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Kenneth M. Dalton of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated May 18,2007, as granted the motion of the defendant Italian American Civil Rights League, Inc., in effect,pursuant to CPLR 306-b and 3211 (a) (8) to dismiss the complaint insofar as asserted against it, and,in effect, denied their cross motion pursuant to CPLR 306-b to extend the time to serve that defendantwith the summons and complaint.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, the motion of the defendant Italian American Civil Rights League, Inc., in effect,pursuant to CPLR 306-b and 3211 (a) (8) to dismiss the complaint insofar as asserted against it isdenied, and the plaintiffs' cross motion pursuant to CPLR 306-b to extend their time to serve thatdefendant with the summons and complaint is granted; and it is further,
Ordered that the time for the summons and complaint to be served upon the defendant ItalianAmerican Civil Rights League, Inc., is extended until 45 days after service upon the plaintiffs of a copyof this decision and order.[*2]
After a careful analysis of the circumstances of the case, abalancing of the competing interests articulated by the parties, and consideration of all relevant factors,including, inter alia, the expiration of the statute of limitations prior to the plaintiffs' discovery that theinitial, timely service upon the defendant Italian American Civil Rights League, Inc., was defective, andthe lack of identified prejudice to that defendant from the delay, we conclude that the Supreme Courtimprovidently exercised its discretion in denying the plaintiffs' cross motion pursuant to CPLR 306-b foran extension of time in the interest of justice to serve that defendant with the summons and complaint(see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Chiaro v D'Angelo, 7 AD3d 746[2004]; Earle v Valente, 302 AD2d 353, 354 [2003]; Seon Uk Lee v Corso, 300AD2d 385, 386 [2002]). Skelos, J.P., Ritter, Dillon, Carni and Leventhal, JJ., concur.