| Wilson v City of New York |
| 2014 NY Slip Op 04754 [118 AD3d 983] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Dora Wilson, Appellant, v City of New York etal., Defendants. |
Rimland & Associates, New York, N.Y. (Victor Goldblum of counsel), forappellant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from stated portions of an order of the Supreme Court, Queens County(Kerrigan, J.), entered February 22, 2012, which, inter alia, denied that branch of hermotion which was pursuant to CPLR 306-b for leave to extend the time to serve copiesof the amended summons and complaint upon a representative of the estate of thedecedent James E. Mitchell.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof denying that branch of the plaintiff's motion which waspursuant to CPLR 306-b for leave to extend the time to serve copies of the amendedsummons and complaint upon a representative of the estate of the decedent James E.Mitchell, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements,and the plaintiff's time to serve copies of the amended summons and complaint upon arepresentative of the estate of the decedent James E. Mitchell is extended until 120 daysafter the date of this decision and order.
The Supreme Court denied that branch of the plaintiff's motion which was pursuantto CPLR 306-b for leave to extend the time to serve copies of the amended summons andcomplaint upon a representative of the estate of the decedent James E. Mitchell, who hadbeen named as a defendant in this action. Under the circumstances of this case, thatbranch of the plaintiff's motion should have been granted.
"An action is commenced by filing a summons and complaint" (CPLR 304 [a])."Service of the summons and complaint . . . shall be made within onehundred twenty days after the commencement of the action" (CPLR 306-b). "If service isnot made upon a defendant within the time provided in this section, the court, uponmotion, shall dismiss the action without prejudice as to that defendant, or upon goodcause shown or in the interest of justice, extend the time for service" (CPLR 306-b). Indeciding whether to grant an extension of time to serve copies of a summons andcomplaint in the interest of justice, "the court may consider diligence, or lack thereof,along with any other relevant factor in making its determination, including expiration ofthe Statute of Limitations, the [potentially] meritorious nature of the cause of action, thelength of delay in service, the promptness of a plaintiff's request for the extension oftime, and prejudice to defendant" (Leader v Maroney, Ponzini & Spencer,97 NY2d 95, 105-106 [2001]; see Moundrakis v Dellis, 96 AD3d 1026, 1027 [2012]; DiBuono v Abbey, LLC, 71AD3d 720, 720 [2010]).
[*2] Here, theplaintiff demonstrated that the branch of her motion which was pursuant to CPLR 306-bshould have been granted in the interest of justice. The plaintiff attempted service duringthe statutory 120-day period, but that service was defective due to Mitchell's death. Therecord also reflects that the statute of limitations has expired and that there is nodemonstrable prejudice to the other parties or to other interested entities, especially inlight of, inter alia, the fact that Mitchell's insurer received actual notice of the plaintiff'sclaim by virtue of the defective service. Under these circumstances, that branch of theplaintiff's motion which was pursuant to CPLR 306-b for leave to extend the time toserve copies of the summons and complaint upon a representative of Mitchell's estateshould have been granted (see Leader v Maroney, Ponzini & Spencer, 97NY2d at 104; Moundrakis v Dellis, 96 AD3d at 1027; DiBuono v Abbey,LLC, 71 AD3d at 720). Accordingly, we grant that branch of the plaintiff's motionand extend the plaintiff's time to serve copies of the amended summons and complaintupon a representative of Mitchell's estate until 120 days after the date of this decision andorder.
The plaintiff's remaining contention is without merit (see Laurenti v Teatom,210 AD2d 300, 301 [1994]; see also SCPA 1002). Skelos, J.P., Cohen, Millerand Hinds-Radix, JJ., concur.