| Henneberry v Borstein |
| 2012 NY Slip Op 00235 [91 AD3d 493] |
| Jnury 17, 2012 |
| Appellate Division, First Department |
| Virginia M. Henneberry, Appellant, v Leon Baer Borsteinet al., Respondents. |
—[*1] Leon Baer Borstein, New York, respondent pro se. James B. Sheinbaum, New York, respondent pro se. Furman Kornfeld & Brennan LLP, New York (Joshua B. Sandberg of counsel), for Borstein& Sheinbaum, respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 15, 2010,which granted defendants' motions to dismiss the complaint (the 2007 Action) to the extent ofdismissing the complaint pursuant to CPLR 3211 (a) (8) without prejudice, and granted plaintiff'scross motion for, inter alia, an extension of time to effect service to the extent of permittingplaintiff to serve within 30 days of a copy of the order with notice of entry "a proper summonsand complaint . . . with a new index number," unanimously modified, on the law, tothe extent of denying defendants' motion and granting plaintiff an extension of time to effectservice pursuant to CPLR 306-b, and otherwise affirmed, without costs. Appeal from order, samecourt and Justice, entered January 20, 2010, which granted defendants' motions to dismiss thecomplaint (the 2009 Action) pursuant to CPLR 3211 (a) (4), unanimously dismissed, withoutcosts, as academic. Order, same court (Charles E. Ramos, J.), entered October 25, 2010, whichgranted defendants' motion to dismiss the complaint (the 2010 Action) on statute of limitationsgrounds, unanimously reversed, on the law, without costs, the motion denied, and the complaintdeemed to be an amended complaint in the 2007 Action. Appeal from order, same court (CharlesE. Ramos, J.), entered March 4, 2011, which discontinued the 2010 Action, unanimouslydismissed, without costs, as abandoned.
Plaintiff, proceeding pro se, brought the 2007 Action against defendant attorneys and theirfirm, asserting claims of legal malpractice and breach of fiduciary duty in their representation ofher in an arbitration against a former employer. That arbitration concluded on [*2]December 4, 2004 with a decision adverse to plaintiff. Plaintiffcommenced the 2007 Action by filing a summons with notice on November 19, 2007, just undera month before the expiration of the applicable three-year statute of limitations (seeCPLR 214 [6]).
On March 13, 2008, within 120 days of the filing of the summons with notice, plaintiffarranged for a licensed process server to serve defendants in accordance with CPLR 306-b. Shesubsequently filed two affidavits of service with the court. On April 1, 2008, 19 days later,defendants submitted a notice of appearance and a demand for a complaint. Plaintiff served asummons and complaint upon defendants on April 28, 2008.
On November 7, 2008, approximately six months later, after having sought and obtainednumerous adjournments, defendants moved to dismiss the 2007 Action, on a number of grounds,including lack of personal jurisdiction. Plaintiff, now represented by counsel, cross moved for,inter alia, an extension of time to effect service pursuant to CPLR 306-b.
While the parties' motions were pending, plaintiff filed the 2009 Action, which containedsubstantially the same substantive claims. She did so to protect her claims in the event that the2007 Action was terminated on a ground subject to revival under CPLR 205 (a). Next, on June19, 2009, defendants moved to dismiss the 2009 Action, arguing that there was an identicalaction pending before the court (CPLR 3211 [a] [4]). On July 23, 2009, the court held a traversehearing regarding the validity of the March 13, 2008 service.
In the first order appealed from, Justice Tingling dismissed the 2007 Action for lack ofpersonal jurisdiction (based on improper service), without prejudice, and granted plaintiff's crossmotion for an extension of time to effect service pursuant to CPLR 306-b, on condition that shepurchase a new index number and properly serve a summons and complaint within 30 days afterservice of the order with notice of entry. In the second order appealed from, issuedcontemporaneously with the first, Justice Tingling dismissed the 2009 Action based upon thependency of another identical action (CPLR 3211 [a] [4]).
Following the court's directive in the first order, on February 11, 2010 plaintiff commencedthe 2010 Action. In the third order appealed from, Justice Ramos dismissed that action asuntimely. Plaintiff challenges each of these three orders.
The unintended effect of the disposition of the first two orders appealed from was to depriveplaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure toeffectively complete the ministerial act of properly serving defendants within 120 days of thefiling of notice. This was error.
CPLR 306-b provides, as relevant: "Service of the summons and complaint, summons withnotice, . . . shall be made within one hundred twenty days after the filing of thesummons and complaint, summons with notice . . . . If service is not made upon adefendant within the time period provided in this section, the court, upon motion, shall dismissthe action without prejudice as to that defendant, or upon good cause shown or in the interest ofjustice, extend the time for service." The statute requires that a defendant challenging servicemove to dismiss on that ground (Danielsv King Chicken & Stuff, Inc., 35 AD3d 345 [2006]). In deciding such a motion, theexpress language of CPLR 306-b gives the court two options: dismiss the action withoutprejudice; or extend the time for service in the existing action. Here, defendants made theirmotions after the statute of limitations had expired. In these circumstances, the court's optionswere limited to [*3]either dismissing the action outright,or extending the time for plaintiff to properly effect service.
The first order appealed from dismissed the action, without prejudice to the filing of anew action, and granted plaintiff's cross motion for an extension of time to effectservice. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, laterdismissed as untimely (Matter ofRodamis v Cretan's Assn. Omonoia, Inc., 22 AD3d 859, 860 [2005] [court cannot grantCPLR 306-b extension where action has been dismissed and statute of limitations has expired];see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2000]). The court shouldhave limited its ruling in the first order on appeal to granting plaintiff's cross motion for anextension of time to effect service pursuant to CPLR 306-b (see Lippett v Education Alliance, 14 AD3d 430, 431 [2005]).
CPLR 306-b authorizes an extension of time for service in two discrete situations: "upongood cause shown" or "in the interest of justice" (Leader v Maroney, Ponzini & Spencer,97 NY2d 95, 104-106 [2001]). The Court of Appeals has confirmed that the "good cause" and"interest of justice" prongs of the section constitute separate grounds for extensions, to be definedby separate criteria (id. at 104). The Court stated, "Our analysis is buttressed by anexamination of the legislative history behind the amendment [to CPLR 306-b]. The New YorkState Bar Associations Commercial and Federal Litigation Section Committee on Civil PracticeLaw and Rules characterized the interest of justice standard as 'more flexible' than the good causestandard, specifically noting that '[s]ince the term "good cause" does not include conduct usuallycharacterized as "law office failure," proposed CPLR 306-b provides for an additional andbroader standard, i.e., the "interest of justice," to accommodate late service thatmight be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'" (id. at 104-105 [emphasis added]). A "good cause" extension requires a showing ofreasonable diligence in attempting to effect service upon a defendant. At least one AppellateDivision decision has suggested that good cause is likely to be found where "the plaintiff's failureto timely serve process is a result of circumstances beyond [its] control" (Bumpus v New York City Tr. Auth.,66 AD3d 26, 32 [2009] [noting difficulties of service with person in military or difficultieswith service abroad through Hague Convention]).
Even if this case does not qualify for an extension under the "good cause" exception (see Mead v Singleman, 24 AD3d1142, 1144 [2005]), we find that it qualifies under the "interest of justice" category. Underthis prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider[plaintiff's] diligence, or lack thereof, along with any other relevant factor . . . ,including expiration of the Statute of Limitations, the meritorious nature of the cause of action,the length of delay in service, the promptness of a plaintiff's request for the extension of time,and prejudice to defendant" (Leader, 97 NY2d at 105-106).
Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was adiligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm,within 120 days of the timely filing of a summons with notice. By the time the court ruled on themotions in the 2007 Action, the statute of limitations had expired, precluding the filing of a newaction. In addition, defendants were aware of the 2007 Action and appeared to demand acomplaint as early as April 2008—they were not prejudiced by the service errors and wereafforded full participation in discovery (see Spath v Zack, 36 AD3d 410, 413 [2007]). Finally, construingthe pleading in the light most favorable to plaintiff, as is required on consideration of [*4]a CPLR 3211 motion to dismiss, we find that it asserts actions andomissions by defendants that support viable claims for recovery (see Leder v Spiegel, 31 AD3d 266[2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v Rowland 552US 1257 [2008]).
Khedouri v Equinox (73 AD3d532 [2010]) and Shelkowitz vRainess (57 AD3d 337 [2008]), cited by the defense in support of dismissing the action,are both distinguishable on their facts. In Khedouri, the court found that dismissal waswarranted because plaintiff made no attempt to serve the defendant, a fitness corporation, within120 days of filing the summons and complaint. In addition, this Court found no merit to theplaintiff's underlying claims, given the voluntary assumption of risks inherent in fitness training(73 AD3d at 532-533). Similarly, dismissal was granted in Shelkowitz, a personal injuryaction involving the accumulation of snow and ice at the defendant's building, where plaintiffmade no attempt to serve the defendant within 120 days of the filing of the action, and theextension request was made 20 months after filing the complaint (57 AD2d at 337). Here, unlikeboth Khedouri and Shelkowitz, plaintiff attempted service within the 120-dayperiod, defendants were aware of the action soon after the filing of the complaint, and, viewingthe amended pleading in the light most favorable to plaintiff, we find it sets forth actionableclaims (Spath v Zack, 36 AD3d410 [2007], supra; Mead vSingleman, 24 AD3d 1142 [2005], supra; Lippett v Education Alliance, 14 AD3d 430 [2005], supra).
Granting plaintiff the opportunity to pursue this action is not only consistent with the"interest of justice" exception set forth in CPLR 306-b, but also with our strong interest indeciding cases on the merits where possible (see e.g. L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1[2007]). Accordingly, given our conclusion that the 2007 Action qualified for an extension oftime to effect service pursuant to CPLR 306-b, we reverse the third order appealed from anddeem the complaint in the 2010 Action to be an amended complaint in the 2007 Action.Concur—Gonzalez, P.J., Tom, Catterson, Richter and RomÁn, JJ.