| Cooke-Garrett v Hoque |
| 2013 NY Slip Op 05554 [109 AD3d 457] |
| August 7, 2013 |
| Appellate Division, Second Department |
| Denise Cooke-Garrett, Appellant, v MohammedHoque, Respondent. |
—[*1] Ryan, Perrone & Hartlein, P.C., Mineola, N.Y. (Robin Mary Heaney and William T.Ryan of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated August 13,2012, which denied, as untimely, her motion pursuant to CPLR 306-b for leave toenlarge the time to serve copies of the summons and complaint upon the defendant.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe matter is remitted to the Supreme Court, Queens County, for a determination of themotion on the merits.
On March 30, 2012, the Supreme Court issued an order granting the defendant'smotion to vacate his default in appearing and answering the complaint on the ground oflack of personal jurisdiction. However, no judgment dismissing the complaint on theground of lack of personal jurisdiction was entered. The plaintiff subsequently moved toextend her time to serve the defendant with process in the action. In an order datedAugust 13, 2012, the court denied the plaintiff's motion on the ground that its prior orderhad dismissed the action and, thus, there was no pending action in which to grant anextension of time for service of process (see Henneberry v Borstein, 91 AD3d 493, 494-495 [2012];Walker v Chaman, 31AD3d 751, 751 [2006]; Matter of Rodamis v Cretan's Assn. Omonoia, Inc., 22 AD3d859, 860 [2005]). On her appeal from the August 13, 2012, order, the plaintiffcontends that, inasmuch as there was no judgment dismissing the action, the action waspending when she moved to extend the time to serve the defendant with process. Weagree. An action is deemed pending until there is a final judgment (see CPLR5011; Paola Vista Clothing v V.R.P. Calzaturificio, 148 AD2d 593, 595 [1989];Knapek v MV Southwest Cape, 110 AD2d 928, 929 [1985]; seegenerally Siegel, NY Prac § 409 [5th ed]). Consequently, the order appealedfrom must be reversed, and we remit the matter to the Supreme Court, Queens County,for a determination of the plaintiff's motion on the merits. Eng, P.J., Balkin, Roman andMiller, JJ., concur.