| Dujany v Gould |
| 2009 NY Slip Op 05248 [63 AD3d 1496] |
| June 25, 2009 |
| Appellate Division, Third Department |
| Dawn M. Dujany, Respondent, v Earl Gould Jr.,Appellant. |
—[*1] Gregory V. Canale, Glens Falls, for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Krogmann, J.), entered August14, 2008 in Warren County, which, among other things, granted plaintiff's motion for anextension of time to effect service of the summons and complaint.
After allegedly slipping and falling on defendant's property on January 11, 2005, plaintiffcommenced this personal injury action by filing a summons with notice in the Warren CountyClerk's office in August 2007. On September 17, 2007, Deputy Sheriff Matt Braunius of theEssex County Sheriff's Department served the summons with notice on defendant's mother at herresidence. Braunius, however, executed an affidavit that he served defendant's mother atdefendant's residence. On September 25, 2007, defendant appeared and demanded the complaintand subsequently served an amended answer containing the affirmative defense of lack ofpersonal jurisdiction. In December 2007, defendant moved to dismiss the complaint based onlack of personal jurisdiction or, alternatively, for a traverse hearing to determine whetherjurisdiction was obtained over defendant. Plaintiff opposed the motion, relying on Braunius'saffidavit of service. Supreme Court thereafter withheld judgment on the motion to dismiss andordered a traverse hearing.
In June 2008, Braunius informed plaintiff's counsel that his initial affidavit of service wasincorrect and that he had indeed served defendant's mother at her residence. Plaintiff then movedby order to show cause for an extension to effectuate proper service on defendant [*2]pursuant to CPLR 306-b. Supreme Court subsequently denieddefendant's motion to dismiss the complaint and granted plaintiff an extension to completeservice on defendant. Defendant now appeals and we affirm.
CPLR 306-b provides, as relevant here, that in instances where proper service of a summonsand notice is not made within 120 days of its filing, a court may extend the time for service "inthe interest of justice." Defendant contends that Supreme Court erred in granting the extension asplaintiff, through allegations contained in defendant's motion to dismiss, was specifically madeaware of the ineffective service prior to the expiration of the statute of limitations and failed totimely act to effectuate service. Granting such an extension in the interest of justice isdiscretionary and in making its determination a court may consider many factors, including theplaintiff's diligence, whether the statute of limitations has expired, the meritorious nature of theaction, the length of delay in service, the promptness of the plaintiff's request for the extension oftime and prejudice to the defendant (see Leader v Maroney, Ponzini & Spencer, 97NY2d 95, 105-106 [2001]; Mead vSingleman, 24 AD3d 1142, 1144 [2005]; City of Albany v Wise, 298 AD2d783, 784 [2002]). Accordingly, while plaintiff's diligence is a factor, it is but one of the factors tobe considered under the interest of justice standard (see Leader v Maroney, Ponzini &Spencer, 97 NY2d at 104). Moreover, as the affidavit of defendant's mother, which was thebasis of the motion to dismiss, did not contradict the assertion in Braunius's affidavit of servicethat he served the mother at defendant's residence, in that she did not articulate where she wasserved, we cannot conclude that plaintiff's continued reliance on Braunius's affidavit constituteda lack of diligence.[FN*]
Regarding the other relevant factors, the statute of limitations had expired by the time thedefect in service was discovered (seeCooper v New York City Bd. of Educ., 55 AD3d 526, 527 [2008]) and plaintiffpromptly requested an extension (seeYamamoto v Yamamoto, 43 AD3d 372, 373 [2007]). Additionally, the verifiedcomplaint demonstrated the merit of the action (see Abu-Aqlein v El-Jamal, 44 AD3d 884, 885 [2007]) and,contrary to defendant's contention, there is no demonstrable proof of prejudice to defendant(see Cooper v New York City Bd. of Educ., 55 AD3d at 527; Robles v Mirzakhmedov, 34 AD3d554, 555 [2006]). Defendant's remaining contention is not preserved for our review.
Spain, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: CPLR 308 (2) provides thatpersonal jurisdiction may be obtained over a defendant by service to a person of suitable age anddiscretion at the defendant's dwelling and an affidavit of service by a process server "ordinarilyconstitutes prima facie evidence of proper service" (Bankers Trust Co. of Cal. v Tsoukas,303 AD2d 343, 343-344 [2003]).