| Chan v Zoubarev |
| 2018 NY Slip Op 00402 [157 AD3d 851] |
| January 24, 2018 |
| Appellate Division, Second Department |
[*1]
| Freida Chan, Respondent, v Valeri Zoubarev,Appellant. |
Rosenbaum & Taylor, P.C., White Plains, NY (Dara L. Rosenbaum of counsel), forappellant.
Jonathan D'Agostino & Associates, P.C., Staten Island, NY (Glen Devora and GiovannaColasanto of counsel), for respondent.
Appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated January8, 2016. The order denied the defendant's motion pursuant to CPLR 3211 (a) (8) and 306-b todismiss the complaint for lack of personal jurisdiction and granted the plaintiff's cross motionpursuant to CPLR 306-b to extend the time to serve the summons and complaint upon thedefendant.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant to recover damages for personalinjuries. The defendant moved pursuant to CPLR 3211 (a) (8) and 306-b to dismiss the complaintfor lack of personal jurisdiction, and the plaintiff cross-moved pursuant to CPLR 306-b to extendthe time to serve the summons and complaint upon the defendant. The Supreme Court denied thedefendant's motion and granted the plaintiff's cross motion. The defendant appeals.
The defendant correctly contends that the plaintiff's purported service of the summons andcomplaint upon him pursuant to CPLR 308 (4) was defective, as the defendant submittedunrebutted evidence that the place where service was attempted and where the summons andcomplaint were affixed was not his dwelling place or usual place of abode at the relevant time(see Commissioners of State Ins. Fund vKhondoker, 55 AD3d 525, 526 [2008]; In Ja Kim v Dong Hee Han, 37 AD3d 662 [2007]; Venneri v Gallo, 23 AD3d 376[2005]).
Nevertheless, the Supreme Court providently exercised its discretion in denying thedefendant's motion to dismiss the complaint and granting the plaintiff's cross motion to extendthe time to serve the summons and complaint upon the defendant. Generally, service of asummons and complaint must be made within 120 days after the commencement of the action(see CPLR 306-b). If service is not made within the time provided, the court, uponmotion, must dismiss the action without prejudice, or "upon good cause shown or in the interestof justice, extend the time for service" (id.). "An extension of time for service is a matterwithin the court's discretion" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95,101 [2001]). Here, while the action was timely commenced, the statute of limitations had expiredwhen the plaintiff cross-moved for relief, the timely service of process was subsequently found tohave been defective, and the defendant had actual notice of the action within 120 days ofcommencement of the action (see Singhv Trahan, 153 AD3d 961 [2017]; Selmani [*2]v City of New York, 100AD3d 861, 862 [2012]; Dhuler vELRAC, Inc., 118 AD3d 937, 939 [2014]). Moreover, there was no prejudice to thedefendant attributable to the delay in service (see Singh v Trahan, 153 AD3d at 961;Selmani v City of New York, 100 AD3d at 862; Dhuler v ELRAC, Inc., 118AD3d at 939). Hall, J.P., Austin, Sgroi and Christopher, JJ., concur.