| Fernandez v Morales Bros. Realty, Inc. |
| 2013 NY Slip Op 06345 [110 AD3d 676] |
| October 2, 2013 |
| Appellate Division, Second Department |
| Gladys Fernandez, Appellant, v Morales Bros.Realty, Inc., et al., Respondents. |
—[*1] Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Queens County (Butler, J.), entered March 19,2012, as denied that branch of her motion which was pursuant to CPLR 306-b for anextension of time to effect service of process upon the defendant Morales Bros. Realty,Inc., nunc pro tunc to September 11, 2011, and granted that branch of the defendants'cross motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofaras asserted against the defendant Morales Bros. Realty, Inc., for lack of personaljurisdiction.
Ordered that the order is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, that branch of the plaintiff's motion which waspursuant to CPLR 306-b for an extension of time to effect service of process upon thedefendant Morales Bros. Realty, Inc., is granted, and that branch of the defendants' crossmotion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against the defendant Morales Bros. Realty, Inc., for lack of personaljurisdiction is denied.
On May 12, 2011, the plaintiff filed a summons and complaint with the QueensCounty clerk naming, as defendants, Morales Bros. Realty, Inc. (hereinafter MBRI) andJorge A. Morales. According to the affidavit of service, the plaintiff's process serverserved both MBRI and Morales on September 11, 2011, or 3 days after the expiration ofthe 120-day period of service set forth in CPLR 306-b, by personally delivering a copy ofthe summons and complaint to Morales, who is also the president of MBRI.
The defendants contend that MBRI was never served with a copy of the summonsand complaint. We disagree. Service of one copy of a summons and complaint upon anofficer of a corporation constitutes service upon the corporation itself as well as upon theindividual officer, where, as here, there was simultaneous compliance with CPLR 311 (a)(1) and CPLR 308 (1) (see Matter of T.E.A. Mar. Automotive Corp. v Scaduto,181 AD2d 776, 780 [1992]; Lac Leasing Corp. v Dutchess Aero, Inc., 32 AD2d949 [1969]; Port Chester Elec. Co. v Ronbed Corp., 28 AD2d 1008 [1967];cf. Lakeside Concrete Corp. v Pine Hollow Bldg. Corp., 104 AD2d 551 [1984],affd 65 NY2d 865 [1985]). Here, MBRI was served pursuant to CPLR 311 (a)(1) when the plaintiff's process server delivered the summons and complaint to theindividual defendant, an officer of MBRI. Accordingly, the method [*2]employed to serve MBRI was proper and, thus, that branchof the defendants' cross motion which was pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against MBRI for lack of personal jurisdiction should havebeen denied.
In this case, where the statute of limitations expired between the time that the actionwas commenced and the time that the copy of the summons and complaint was served,that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend thetime to serve the summons and complaint upon MBRI nunc pro tunc to September 11,2011, should have been granted in the interest of justice (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Rosenzweig v 600 N. St.,LLC, 35 AD3d 705, 706 [2006]). The copy of the summons and complaint wasserved only 3 days after the 120-day time period of CPLR 306-b had expired, theplaintiff promptly sought relief after receiving the answer, and there was nodemonstrable prejudice to MBRI attributable to the delay in service (see Thompson v City of NewYork, 89 AD3d 1011, 1012 [2011]; DiBuono v Abbey, LLC, 71 AD3d 720 [2010]; Abu-Aqlein v El-Jamal, 44AD3d 884, 885 [2007]; Beauge v New York City Tr. Auth., 282 AD2d 416[2001]; Busler v Corbett, 259 AD2d 13, 17 [1999]). Angiolillo, J.P., Hall,Roman and Cohen, JJ., concur.