| Selmani v City of New York |
| 2012 NY Slip Op 07981 [100 AD3d 861] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Samir Selmani et al., Respondents, v City of New York etal., Defendants, and Michael Reilly, Appellant. |
—[*1] Tacopina & Arnold (Antin, Ehrlich & Epstein, LLP, New York, N.Y. [Jeffrey S. Antin andEmily Mann], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Michael Reilly,individually, appeals from so much of an order of the Supreme Court, Kings County (Ash, J.),dated November 30, 2011, as denied his motion pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against him, individually, for lack of personal jurisdiction andgranted the plaintiffs' cross motion pursuant to CPLR 306-b for leave to extend the time to servehim with copies of the summons and complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellant correctly contends that the plaintiffs failed to establish that he was served at his"actual place of business" pursuant to CPLR 308 (2). A person's "actual place of business" mustbe where the person is physically present with regularity, and that person must be shown toregularly transact business at that location (see Katz v Emmett, 226 AD2d 588, 589[1996]; Bridgehampton Natl. Bank v Watermill Hgts. Assoc., 157 Misc 2d 246, 250[1993]; Anon Realty Assoc. v Simmons Stanley, 153 Misc 2d 954, 957 [1992];DiGiuseppe v DiGiuseppe, 70 Misc 2d 188, 189 [1972]). Here, there was no showingthat the appellant was physically present with regularity or regularly transacted business at theheadquarters of the New York City Fire Department in Brooklyn where process was served (see Matter of Hennessey v DiCarlo, 21AD3d 505, 506 [2005]; Jiminez vCity of New York, 5 AD3d 182, 183 [2004]; Williams v City of New York,2010 NY Slip Op 30022[U] [Sup Ct, NY County 2010]). Accordingly, the attempted service ofthe summons and complaint pursuant to CPLR 308 (2) was defective as a matter of law (see Munoz v Reyes, 40 AD3d1059 [2007]; Rios v Zorrilla, 8AD3d 463 [2004]).
The Supreme Court, however, providently exercised its discretion in granting the plaintiffs'cross motion pursuant to CPLR 306-b for leave to extend the time to serve the appellant withcopies of the summons and complaint in the interest of justice (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). Here, while the action was timelycommenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, thetimely service of process was [*2]subsequently found to havebeen defective, and the appellant had actual notice of the action within 120 days ofcommencement of the action (seeRosenzweig v 600 N. St., LLC, 35 AD3d 705 [2006]; Chiaro v D'Angelo, 7 AD3d 746[2004]; Beauge v New York City Tr. Auth., 282 AD2d 416 [2001]). Furthermore, theplaintiffs demonstrated a potentially meritorious cause of action, and there was no prejudice tothe appellant attributable to the delay in service (see Leader v Maroney, Ponzini &Spencer, 97 NY2d at 105-106; Rosenzweig v 600 N. St., LLC, 35 AD3d at 706).Rivera, J.P., Florio, Dickerson, Leventhal and Lott, JJ., concur.