| Thompson v City of New York |
| 2011 NY Slip Op 08581 [89 AD3d 1011] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Keith Thompson, Respondent, v City of New York, Defendant,and Stephen Buonavita, Appellant. |
—[*1] Nichols & Cane, LLP, Syosset, N.Y. (Regina C. Nichols of counsel), for respondent.
In an action, inter alia, to recover damages for assault, the defendant Stephen Buonavita appeals,as limited by his brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.),dated December 14, 2010, as denied that branch of his motion which was pursuant to CPLR 3211 (a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction and grantedthat branch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend the time toserve the summons and complaint upon him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in denying that branch of the motion of thedefendant Stephen Buonavita (hereinafter the defendant) which was pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and granting thatbranch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend the time to servethe summons and complaint upon the defendant in the interest of justice (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; DiBuono v Abbey, LLC, 71 AD3d 720 [2010]; Rosenzweig v 600 N. St., LLC, 35 AD3d705, 706 [2006]). When deciding whether to grant an extension of time to serve a summons andcomplaint in the interest of justice, "the court may consider diligence, or lack thereof, along with anyother relevant factor in making its determination, including expiration of the Statute of Limitations, the[potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of aplaintiff's request for the extension of time, and prejudice to defendant" (Leader v Maroney, Ponzini& Spencer, 97 NY2d at 105-106; seeBumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2009]). Here, the recordestablished that the plaintiff exercised diligence by timely filing and twice attempting to serve thedefendant with the summons and complaint pursuant to CPLR 308 (4) within the 120-day periodfollowing the filing of the summons and complaint, although those attempts to serve the defendant wereultimately deemed defective (see DiBuono v Abbey, LLC, 71 AD3d at 720; Earle vValente, 302 AD2d 353, 354 [2003]). Moreover, if the Supreme Court did not grant an extensionof time to the plaintiff to serve the summons and complaint, the statute of limitations would have barredthe plaintiff's claims against the defendant, which the plaintiff demonstrated were potentially meritorious(see DiBuono v Abbey, [*2]LLC, 71 AD3d at 720;Beauge v New York City Tr. Auth., 282 AD2d 416 [2001]; Scarabaggio v Olympia & YorkEstates Co., 278 AD2d 476 [2000], affd sub nom. Leader v Maroney, Ponzini &Spencer, 97 NY2d 95 [2001]). The plaintiff also demonstrated that he promptly cross-moved foran extension of time to serve the defendant, and there was no demonstrable prejudice to the defendant(see DiBuono v Abbey, LLC, 71 AD3d at 720). Rivera, J.P., Eng, Belen and Austin, JJ.,concur.