| HSBC Bank USA, N.A. v Oqlah |
| 2018 NY Slip Op 05451 [163 AD3d 928] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., as Trustee for Wells Fargo AssetSecurities Corporation, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-PA3,Respondent, v Tarek Oqlah, Appellant, et al., Defendants. |
Tsyngauz & Associates, P.C., New York, NY (Yevgeny Tsyngauz and Simon I.Malinowski of counsel), for appellant.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Ryan Sirianniof counsel), for respondent.
In an action to foreclose a mortgage, the defendant Tarek Oqlah appeals from (1) an order ofthe Supreme Court, Kings County (Lawrence Knipel, J.), dated February 24, 2016, and (2) anorder of the same court (Noach Dear, J.), dated September 15, 2016. The order dated February24, 2016, granted the plaintiff's motion pursuant to CPLR 306-b to extend the time to serve thesummons and complaint on the defendant Tarek Oqlah to the extent of granting the plaintiff a60-day extension, and denied that defendant's motion pursuant to CPLR 306-b to dismiss thecomplaint insofar as asserted against him. The order dated September 15, 2016, denied thatdefendant's motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him for lack of personal jurisdiction and granted the plaintiff's cross motion pursuant toCPLR 306-b to deem service of the summons and complaint on that defendant timely, nunc protunc.
Ordered that the orders are affirmed, with one bill of costs.
Subsequent to commencing this mortgage foreclosure action, the plaintiff moved pursuant toCPLR 306-b to extend the time to serve the summons and complaint on the defendant TarekOqlah (hereinafter the defendant), and the defendant moved pursuant to CPLR 306-b to dismissthe complaint insofar as asserted against him. In an order dated February 24, 2016, the SupremeCourt granted the plaintiff's motion to the extent that the plaintiff was granted a 60-dayextension, and denied the defendant's motion. On April 26, 2016, one day after the 60-dayextension expired, the defendant moved pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against him for lack of personal jurisdiction. The plaintiff cross-movedpursuant to CPLR 306-b to deem service of the summons and complaint on the defendant onApril 30, 2016, timely, nunc pro tunc. In an order dated September 15, 2016, the Supreme Courtdenied the defendant's motion and granted the plaintiff's cross motion. The defendant appealsfrom both orders, and we affirm.
"Pursuant to CPLR 306-b, a court may, in the exercise of its sound discretion, grant [*2]a motion for an extension of time within which to effect service forgood cause shown or in the interest of justice. Good cause requires a showing of reasonablediligence in attempting to effect service, while the broader interest of justice ground allows thecourt to balance a number of relevant factors in reaching its determination" (Emigrant Bank v Estate of Robinson,144 AD3d 1084, 1085 [2016] [citations omitted]; see Leader v Maroney, Ponzini &Spencer, 97 NY2d 95 [2001]). In determining whether an extension of time is warranted inthe interest of justice, a court may consider diligence, or lack thereof, along with any otherrelevant factor, including the expiration of the statute of limitations, the meritorious nature of thecause of action, the length of delay in service, the promptness of a plaintiff's request for theextension of time, and prejudice to the defendant (see A.K. v T.K., 150 AD3d 1091, 1093 [2017]; Emigrant Bankv Estate of Robinson, 144 AD3d at 1085).
We agree with the Supreme Court's determination granting, in the interest of justice, theplaintiff's first motion to extend the time to complete service on the defendant and denying thedefendant's motion pursuant to CPLR 306-b to dismiss the complaint insofar as asserted againsthim (see US Bank N.A. v Saintus,153 AD3d 1380, 1381-1382 [2017]; Emigrant Bank v Estate of Robinson, 144AD3d at 1085). The plaintiff demonstrated the existence of a potentially meritorious action, thatit promptly moved for relief following the expiration of the 120-day period, and that there was noidentifiable prejudice to the defendant as a consequence of the delay in service.
We also agree with the Supreme Court's determination granting the plaintiff's subsequentcross motion to deem the service on the defendant on April 30, 2016, timely, nunc pro tunc, anddenying the defendant's motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofaras asserted against him. The plaintiff demonstrated that it made the requisite reasonably diligentefforts to effect proper service within the 60-day extended period, thereby warranting a furtherextension for good cause (see Emigrant Bank v Estate of Robinson, 144 AD3d at 1085;cf. Hobbins v North Star Orthopedics,PLLC, 148 AD3d 784, 788 [2017]). The plaintiff also demonstrated that proper servicewas effected only five days past the expiration of the 60-day extension, the existence of apotentially meritorious action, and no identifiable prejudice to the defendant as a consequence ofthe delay in service (see Umana vSofola, 149 AD3d 1138, 1139-1140 [2017]; Emigrant Bank v Estate ofRobinson, 144 AD3d at 1085; Fernandez v Morales Bros. Realty, Inc., 110 AD3d 676, 677[2013]; Thompson v City of NewYork, 89 AD3d 1011, 1012 [2011]). The defendant's contention that the April 30, 2016,service upon him was ineffective is without merit because the defendant failed to sufficientlyrebut the presumption of proper service established by the process server's affidavit. No hearingwas warranted under the facts of this case (see HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945 [2018];Nationstar Mtge., LLC v Kamil, 155AD3d 966, 967 [2017]; WellsFargo Bank, N.A. v Decesare, 154 AD3d 717, 718 [2017]; Washington Mut. Bank v Huggins, 140AD3d 858, 859 [2016]). Rivera, J.P., Hinds-Radix, LaSalle and Brathwaite Nelson, JJ.,concur.