| Gabbar v Flatlands Commons, LLC |
| 2017 NY Slip Op 04100 [150 AD3d 1084] |
| May 24, 2017 |
| Appellate Division, Second Department |
[*1]
| Hamound A. Gabbar et al., Respondents, v FlatlandsCommons, LLC, Appellant, et al., Defendant. |
James J. Toomey, New York, NY (Evy L. Kazansky of counsel), for appellant.
Law Offices of Denis Davydov, P.C., Brooklyn, NY (Elizabeth Mark Meyerson of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendant Flatlands Commons,LLC, appeals from so much of an order of the Supreme Court, Kings County (Velasquez, J.),dated October 14, 2015, as granted the plaintiffs' cross motion pursuant to CPLR 306-b to extendtheir time to serve the summons and complaint on it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On February 2, 2011, the plaintiff Hamound A. Gabbar (hereinafter the injured plaintiff)allegedly was injured when he tripped and fell on the sidewalk in front of premises owned by thedefendant Flatlands Commons, LLC (hereinafter the appellant), and leased by the defendantBanco Popular. On January 24, 2013, the injured plaintiff, and his wife suing derivatively,commenced this action. On February 22, 2013, both defendants were served by delivering copiesof the summons and complaint to an assistant manager of the defendant Banco Popular at thepremises. While Banco Popular served an answer, the appellant failed to appear or answer thecomplaint. By notice of motion dated January 6, 2015, the appellant moved pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against it for lack of jurisdiction. Bynotice of cross motion dated June 18, 2015, the plaintiffs cross-moved pursuant to CPLR 306-bto extend their time to serve the summons and complaint upon the appellant. The Supreme Courtgranted the plaintiffs' cross motion pursuant to CPLR 306-b to extend their time to serve thesummons and complaint upon the appellant and, in effect, denied the appellant's motion pursuantto CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against it.
The Supreme Court providently exercised its discretion in granting the plaintiffs' crossmotion pursuant to CPLR 306-b to extend their time to serve the summons and complaint uponthe appellant in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97NY2d 95, 105-106 [2001]). The plaintiffs' time to effect service of process was properlyextended since the verified complaint demonstrated a potentially meritorious cause of action, thestatute of limitations had [*2]expired, the action was commencedwithin the 3-year statutory period, service of the summons and complaint which was timely madewithin the 120-day period (see CPLR 306-b) was subsequently found to have beendefective, and there is no demonstrable prejudice to the appellant that would militate againstgranting the extension of time to serve it (see CPLR 105 [u]; 214; 306-b; Rudd v City of New York, 115 AD3d729 [2014]; Abu-Aqlein vEl-Jamal, 44 AD3d 884, 885 [2007]; Robles v Mirzakhmedov, 34 AD3d 554, 555 [2006]; Chiaro v D'Angelo, 7 AD3d 746[2004]; Earle v Valente, 302 AD2d 353, 354 [2003]; Busler v Corbett, 259 AD2d13, 16 [1999]). In the absence of prejudice to the appellant, it would be unjust to deprive theplaintiffs of the opportunity to prove their causes of action against both defendants (see Przespolewski v ElderWood HealthCare at Linwood, 55 AD3d 1327, 1328 [2008]; Busler v Corbett, 259 AD2d at16). Rivera, J.P., Austin, Miller and Barros, JJ., concur.