| DiBuono v Abbey, LLC |
| 2010 NY Slip Op 01913 [71 AD3d 720] |
| March 9, 2010 |
| Appellate Division, Second Department |
| James DiBuono et al., Respondents, v Abbey, LLC, et al.,Defendants, and Estate of Michael R. Crabtree, Appellant. (And a Third-PartyAction.) |
—[*1] Meiselman, Denlea, Packman, Carton & Eberz P.C., White Plains, N.Y. (Jill C. Owens ofcounsel), for respondents.
In an action, inter alia, to recover damages for injury to property, the defendant estate ofMichael R. Crabtree appeals from an order of the Supreme Court, Westchester County(Lefkowitz, J.), entered July 1, 2009, which denied its motion pursuant to CPLR 3211 (a) (5) and(8) to dismiss the complaint insofar as asserted against it and granted the plaintiffs' cross motionpursuant to CPLR 306-b to extend the time for service of the summons and complaint upon it inthe interest of justice.
Ordered that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the motion of thedefendant estate of Michael R. Crabtree (hereinafter the estate) to dismiss the complaint insofaras asserted against it and in granting the plaintiffs' cross motion pursuant to CPLR 306-b toextend the time for service of the summons and complaint upon the estate in the interest ofjustice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Rosenzweig v 600 N. St., LLC, 35AD3d 705, 706 [2006]). Relevant factors in support of the extension included timely servicewhich was later found to be defective, service upon the proper party within a reasonable timeafter learning of the defect, evidence of merit to the plaintiffs' claim, and lack of demonstrableprejudice to the estate in light of its actual notice of the plaintiffs' claim before the New YorkEnvironmental Protection and Spill Compensation Fund (see Rosenzweig v 600 N. St.,LLC, 35 AD3d at 705-706; Scarabaggio v Olympia & York Estates Co., 278 AD2d476, 476-477 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95[2001]). Moreover, while the action was timely commenced by proper filing, the plaintiffs' claimagainst the estate would be extinguished without an extension since the statute of limitationsexpired between the time the summons and complaint were filed and the estate's administratorwas properly served (see Abu-Aqlein vEl-Jamal, 44 AD3d 884, 885 [2007]; Beauge v New York City Tr. Auth., 282AD2d 416 [2001]). Accordingly, the record supports the Supreme Court's determination pursuantto CPLR 306-b granting the plaintiffs an extension for service of process nunc pro tunc in theinterest of justice and denying the estate's motion to dismiss the complaint [*2]insofar as asserted against it. Fisher, J.P., Angiolillo, Belen andLott, JJ., concur.