| Dhuler v ELRAC, Inc. |
| 2014 NY Slip Op 04729 [118 AD3d 937] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Babidhi Dhuler, Appellant, v ELRAC, Inc., etal., Defendants, and El Ouakhomi El Mustapha, Respondent. |
Bisogno & Meyerson, Brooklyn, N.Y. (Theresa A. Ficchi of counsel), forappellant.
Brand, Glick & Brand, P.C., Garden City, N.Y. (Keneth M. Finkelstein ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Queens County (Nahman, J.), entered January 14, 2013,which denied her motion pursuant to CPLR 306-b for a second extension of time to servea copy of the summons and complaint upon the defendant El Ouakhomi El Mustapha,and (2) an order of same court entered April 16, 2013, which granted the motion of thedefendant El Ouakhomi El Mustapha to dismiss the complaint insofar as asserted againsthim, and denied her cross motion for leave to reargue her motion for a second extensionof time to serve the summons and complaint upon the defendant El Ouakhomi ElMustapha.
Ordered that the appeal from so much of the order entered April 16, 2013, as deniedthe plaintiff's cross motion for leave to reargue is dismissed, as no appeal lies from anorder denying leave to reargue; and it is further,
Ordered that the order entered January 14, 2013, is reversed, on the facts and in theexercise of discretion, the plaintiff's motion for a second extension of time to serve acopy of the summons and complaint upon the defendant El Ouakhomi El Mustapha isgranted, and the plaintiff's time to serve that defendant is extended until 45 days afterservice upon the plaintiff of a copy of this decision and order; and it is further,
Ordered that the order entered April 16, 2013, is reversed insofar as reviewed, on thelaw, and the motion of the defendant El Ouakhomi El Mustapha to dismiss the complaintinsofar as asserted against him is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
On May 9, 2009, the plaintiff was a passenger in a vehicle owned by the defendantELRAC, Inc., and operated by the defendant El Ouakhomi El Mustapha (hereinafter ElMustapha), [*2]when that vehicle collided with a vehicleowned and operated by the other defendants, causing the plaintiff to sustain personalinjuries. The plaintiff commenced this action on January 20, 2012.
On January 31, 2012, a process server attempted to serve El Mustapha at the addressset forth on the police accident report, but El Mustapha's whereabouts were thenunknown. The plaintiff moved for an extension of time within which to serve processupon El Mustapha and, in an order dated July 2, 2012, the motion was granted withoutopposition, and the plaintiff's time to serve El Mustapha was extended until 120 daysafter July 2, 2012.
On or about November 2, 2012, the plaintiff moved for a second extension of timewithin which to serve El Mustapha. While that motion was pending, El Mustapha filedan answer dated December 24, 2012, raising as affirmative defenses that he was notserved with process, and that the applicable limitations period had since expired. In anorder entered January 14, 2013, the plaintiff's motion was denied on the ground that "theCourt is unaware of any authority authorizing the Court to grant an additional extension"after one extension had already been granted.
By notice of motion dated January 11, 2013, El Mustapha moved to dismiss thecomplaint insofar as asserted against him for lack of personal jurisdiction, based on theplaintiff's failure to serve process upon him, and based upon the lapse of the three-yearstatute of limitations applicable to actions to recover damages for personal injuries(see CPLR 214 [5]). The plaintiff cross-moved for leave to reargue her motionfor a second extension of time within which to serve El Mustapha. In an order enteredApril 16, 2013, the Supreme Court granted El Mustapha's motion and denied theplaintiff's cross motion for leave to reargue.
Contrary to the conclusion of the Supreme Court, there is authority permitting asecond extension of time within which to serve copies of a summons and complaint upona defendant (see Estey-Dorsa vChavez, 27 AD3d 277 [2006]). Further, while the motion for a second extensionof time was pending, El Mustapha, who was represented by counsel, served an answer.Therefore, it is clear that El Mustapha had notice of the commencement of this actionagainst him. There is no indication of prejudice. In view of the foregoing, the plaintiff'smotion for a second extension time pursuant to CPLR 306-b should have been granted(see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001];Cooper v New York City Bd. ofEduc., 55 AD3d 526, 527 [2008]; Beauge v New York City Tr. Auth.,282 AD2d 416 [2001]), and El Mustapha's subsequent motion to dismiss the complaintinsofar as asserted against him should have been denied. Eng, P.J., Austin, Hinds-Radixand LaSalle, JJ., concur.