| Moundrakis v Dellis |
| 2012 NY Slip Op 05152 [96 AD3d 1026] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Maria Moundrakis, Respondent, v John Dellis,Appellant. |
—[*1] Ginsburg & Misk, Queens Village, N.Y. (Gerard N. Misk of counsel), forrespondent.
In an action, inter alia, to recover damages for assault, the defendant appeals, as limited byhis brief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), datedJuly 19, 2011, as granted the plaintiff's motion pursuant to CPLR 306-b to extend the time toserve the defendant with a summons and complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion pursuant to CPLR 306-b to extend the time for service of a summons andcomplaint may be granted upon "good cause shown or in the interest of justice" (see Leader vMaroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]). The plaintiff failed todemonstrate that she exercised reasonably diligent efforts in attempting to effect proper serviceof process upon the defendant and, thus, did not establish "good cause" (CPLR 306-b; seeLeader v Maroney, Ponzini & Spencer, 97 NY2d at 104; Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2009]; Kazimierski v New York Univ., 18AD3d 820 [2005]; Busler v Corbett, 259 AD2d 13, 15 [1999]). Nevertheless, theSupreme Court providently exercised its discretion in granting the plaintiff's motion "in theinterest of justice" (CPLR 306-b). In deciding whether to grant an extension of time to serve asummons and complaint in the interest of justice, "the court may consider diligence, or lackthereof, along with any other relevant factor in making its determination, including expiration ofthe Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length ofdelay in service, the promptness of a plaintiff's request for the extension of time, and prejudice todefendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Thompson v City of New York, 89AD3d 1011, 1012 [2011]; Bumpus v New York City Tr. Auth., 66 AD3d at 32).Here, the plaintiff moved promptly for an extension after the defendant challenged the service onthe ground that it was defective (seeDiBuono v Abbey, LLC, 71 AD3d 720 [2010]; Bumpus v New York City Tr.Auth., 66 AD3d at 37). Furthermore, the statute of limitations had expired at the time theplaintiff made her motion, there was evidence of a potentially meritorious cause of action, andthere was no demonstrable prejudice to the defendant (see Thompson v City of NewYork, 89 AD3d at 1012; DiBuono vAbbey, LLC, 71 AD3d 720 [2010]; Rosenzweig v 600 N. St., LLC, 35 AD3d 705, 706 [2006]). Skelos,J.P., Dickerson, Hall, Roman and Cohen, JJ., concur.