Rudd v City of New York
2014 NY Slip Op 01594 [115 AD3d 729]
March 12, 2014
Appellate Division, Second Department
As corrected through Wednesday, April 30, 2014


Alicia Rudd, Appellant,
v
City of New York,Defendant, and New York City Housing Authority,Respondent.

—[*1]Napoli Bern Ripka Shkolnik, LLP, New York, N.Y. (Denise A. Rubin ofcounsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Patrick J.Lawless of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ash, J.), dated August 18, 2011, whichgranted the motion of the defendant New York City Housing Authority pursuant toCPLR 3211 (a) (5) and (8) to dismiss the complaint insofar as asserted against it, anddenied her cross application pursuant to CPLR 306-b to enlarge her time to effect serviceof process upon the defendant New York City Housing Authority nunc pro tunc toMarch 15, 2011, in the interest of justice.

Ordered that on the Court's own motion, the notice of appeal from so much of theorder as denied the plaintiff's cross application pursuant to CPLR 306-b to enlarge hertime to effect service of process upon the defendant New York City Housing Authoritynunc pro tunc to March 15, 2011, in the interest of justice, is deemed to be an applicationfor leave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, the motion of the defendant New YorkCity Housing Authority pursuant to CPLR 3211 (a) (5) and (8) to dismiss the complaintinsofar as asserted against it is denied, and the plaintiff's cross application pursuant toCPLR 306-b to enlarge her time to effect service of process upon the defendant NewYork City Housing Authority nunc pro tunc to March 15, 2011, in the interest of justice,is granted; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

Although this action was timely commenced, the statute of limitations had expiredwhen the plaintiff sought to enlarge her time to serve copies of the summons andcomplaint upon the defendant New York City Housing Authority (hereinafter theNYCHA) nunc pro tunc to March 15, 2011 (see Selmani v City of New York, 100 AD3d 861, 862[2012]; DiBuono v Abbey,LLC, 71 AD3d 720 [2010]; Rosenzweig v 600 N. St., LLC, 35 AD3d 705, 706[2006]). However, the NYCHA received actual notice of the claim and conducted an oralexamination of the plaintiff pursuant to Public Housing Law § 157 (2) and GeneralMunicipal Law § 50-h less than four months after the accrual of the claim, andprior to the commencement of the action, and the NYCHA did not demonstrate anyprejudice [*2]attributable to the delay in service (seeRosenzweig v 600 N. St., LLC, 35 AD3d at 706; Beauge v New York City Tr.Auth., 282 AD2d 416 [2001]; Scarabaggio v Olympia & York Estates Co.,278 AD2d 476 [2000], affd sub nom. Leader v Maroney, Ponzini &Spencer, 97 NY2d 95 [2001]). Moreover, there is evidence of a potentiallymeritorious claim (seeMoundrakis v Dellis, 96 AD3d 1026, 1027 [2012]; Thompson v City of NewYork, 89 AD3d 1011, 1012 [2011]; DiBuono v Abbey, LLC, 71 AD3dat 720).

Accordingly the Supreme Court should have denied the NYCHA's motion to dismissthe complaint insofar as asserted against it and granted the plaintiff's cross applicationpursuant to CPLR 306-b to enlarge her time to effect service of process upon NYCHAnunc pro tunc to March 15, 2011, in the interest of justice (see Leader v Maroney,Ponzini & Spencer, 97 NY2d at 105-106.) Balkin, J.P., Lott, Roman and Miller, JJ.,concur.


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