| US Bank N.A. v Saintus |
| 2017 NY Slip Op 06567 [153 AD3d 1380] |
| September 20, 2017 |
| Appellate Division, Second Department |
[*1]
| US Bank National Association, Appellant, v JeanJoseph Saintus, Respondent, et al., Defendants. |
Hogan Lovells US, LLP, New York, NY (Cameron E. Grant of counsel), for appellant.
Lester & Associates, P.C., Garden City, NY (Gabriel R. Korinman of counsel), forrespondent.
Appeals from (1) an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.),entered July 10, 2015, and (2) an order of that court entered October 28, 2015. The order enteredJuly 10, 2015, granted that branch of the motion of the defendant Jean Joseph Saintus which waspursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lackof personal jurisdiction. The order entered October 28, 2015, insofar as appealed from, in effect,denied that branch of the plaintiff's motion which was pursuant to CPLR 306-b for leave toextend its time to serve the summons and complaint upon the defendant Jean JosephSaintus.
Ordered that the order entered October 28, 2015, is reversed insofar as appealed from, on thelaw, on the facts, and in the exercise of discretion, that branch of the plaintiff's motion which waspursuant to CPLR 306-b for leave to extend its time to serve the summons and complaint uponthe defendant Jean Joseph Saintus is granted, and the order entered July 10, 2015, is vacated; andit is further,
Ordered that the plaintiff's time to serve the summons and complaint upon the defendant JeanJoseph Saintus is extended until 120 days after the date of this decision and order; and it isfurther,
Ordered that the appeal from the order entered July 10, 2015, is dismissed as academic inlight of our determination on the appeal from the order entered October 28, 2015; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. Following a hearing todetermine the validity of service of process, in an order entered July 10, 2015, the Supreme Courtgranted that branch of the motion of the defendant Jean Joseph Saintus which was pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction, concluding that the plaintiff had failed to exercise due diligence in attempting toeffectuate service pursuant to CPLR 308 (1) or (2) before resorting to "nail and mail" servicepursuant to CPLR 308 (4) (see AuroraLoan Servs., LLC v Gaines, 104 AD3d 885, 886-887 [2013]). No judgment dismissingthe complaint on the ground of lack of personal jurisdiction was entered. In an order enteredOctober 28, 2015, the Supreme Court, in effect, denied that branch of the plaintiff's motionwhich was pursuant to CPLR 306-b for leave to extend its time to serve the summons andcomplaint upon Saintus. The plaintiff appeals from both orders.
Under the circumstances of this case, the Supreme Court should have granted that branch ofthe plaintiff's motion which was pursuant to CPLR 306-b for leave to extend its time to serve thesummons and complaint upon Saintus in the interest of justice (see Leader v Maroney,Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). While the action was timelycommenced, the statute of limitations had expired when the plaintiff moved for this relief, thetimely service of process was subsequently found to have been defective, there was noidentifiable prejudice to Saintus attributable to the delay in proper service, and the complaintappears to be potentially meritorious (see Rivera v Rodriguez, 142 AD3d 657, 658 [2016]; Wilson v City of New York, 118 AD3d983, 984 [2014]; Castillo v JFKMedport, Inc., 116 AD3d 899, 900 [2014]). Contrary to Saintus's contention, the courtdid not lack jurisdiction to entertain this branch of the plaintiff's motion. Inasmuch as nojudgment was entered dismissing the action, the action was pending when the plaintiff moved toextend the time to serve Saintus with process (see Cooke-Garrett v Hoque, 109 AD3d 457 [2013]).
In light of our determination on the appeal from the order entered October 28, 2015, theappeal from the order entered July 10, 2015, has been rendered academic. Leventhal, J.P., Hall,Hinds-Radix and Maltese, JJ., concur.