| Mighty v Deshommes |
| 2019 NY Slip Op 08996 [178 AD3d 912] |
| December 18, 2019 |
| Appellate Division, Second Department |
[*1]
| Gary Mighty, Respondent, v John R. Deshommes et al.,Defendants, and Wayne K. Ewing, Appellant. |
Morris Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka and Andrea M.Alonso of counsel), for appellant.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn, SusanM. Jaffe, and Christen Giannaros], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Wayne K. Ewing appealsfrom (1) an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated June 16,2017, (2) an order of the same court dated September 15, 2017, and (3) an order of the samecourt dated May 4, 2018. The order dated June 16, 2017, denied the motion of the defendantWayne K. Ewing pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted againsthim and granted the plaintiff's cross motion pursuant to CPLR 306-b for an extension of time toserve the summons and complaint upon him. The order dated September 15, 2017, insofar asappealed from, upon reargument, adhered to the prior determination in the order dated June 16,2017. The order dated May 4, 2018, denied the second motion of the defendant Wayne K. Ewingpursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against him and grantedthe plaintiff's cross motion pursuant to CPLR 306-b for a second extension of time to serve thesummons and complaint upon the defendant Wayne K. Ewing.
Ordered that the appeal from the order dated June 16, 2017, is dismissed, as that order wassuperseded by the order dated September 15, 2017, made upon reargument; and it is further,
Ordered that the order dated September 15, 2017, is affirmed insofar as appealed from; and itis further,
Ordered that the order dated May 4, 2018, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
On November 20, 2011, the plaintiff was a passenger in a vehicle owned and operated by thedefendant Wayne K. Ewing when that vehicle collided with a vehicle owned and operated by theother defendants, allegedly causing the plaintiff to sustain personal injuries. The plaintiffcommenced this action on November 12, 2014. The police accident report gave Ewing's addressas being on Strauss Street in Brooklyn (hereinafter the Strauss Street address). An affidavit ofservice indicated that Ewing was served at that address by delivering the summons and complaintto an individual of suitable age and discretion on November 24, 2014, and by mailing a copy tothe same address (see CPLR 308 [2]). On December 4, 2014, a process server alsoattempted to serve Ewing at a second address located on Atlantic Avenue in Brooklyn(hereinafter the Atlantic Avenue address), but the building was vacant and there was no onepresent to accept service. By answer dated April 27, 2015, Ewing answered the complaint andraised lack of personal jurisdiction as an affirmative defense.
By notice of motion dated June 26, 2015, Ewing moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against him, inter alia, on the ground of lack of personaljurisdiction. In his supporting affidavit, Ewing stated that while he had given the police theStrauss Street address at the time of the accident, he was only staying there temporarily, and thathe moved to the Atlantic Avenue address after the accident. Ewing averred, in effect, that he wasnever served with the summons and complaint at the Atlantic Avenue address. In August 2015,the plaintiff opposed Ewing's motion and cross-moved for an extension of time to serve Ewing.After a hearing to determine the validity of service of process, in an order dated June 16, 2017,the Supreme Court, in the interest of justice, denied Ewing's motion to dismiss and granted theplaintiff's cross motion for an extension of time to serve Ewing. The plaintiff's time to serveEwing was extended 30 days to July 17, 2017. On July 6, 2017, Ewing moved for leave toreargue. In an order dated September 15, 2017, the court, upon reargument, adhered to the priordetermination.
On June 27, 2017, a process server attempted to serve Ewing at the Atlantic Avenue address,which was the address Ewing had on file with the New York State Department of MotorVehicles (hereinafter the DMV). However, the process server was unable to effect servicebecause Ewing was not there and the building was being demolished. The plaintiff thenconducted a search and found a Georgia address, where Ewing also admittedly resided for aperiod of time following the accident. After unsuccessfully attempting personal service at theGeorgia address, the plaintiff served Ewing by "affix and mail" service on July 6, 2017. InAugust 2017, Ewing made a second motion to dismiss for lack of jurisdiction. The plaintiffcross-moved pursuant to CPLR 306-b for a second extension of time to serve Ewing. In an orderdated May 4, 2018, the Supreme Court, in the interest of justice, denied Ewing's motion andgranted the plaintiff's cross motion. Ewing appeals.
In determining whether to grant an extension of time to serve a summons and complaint inthe interest of justice, " 'the court may consider diligence, or lack thereof, along with anyother relevant factor in making its determination, including expiration of the Statute ofLimitations, the [potentially] meritorious nature of the cause of action, the length of delay inservice, the promptness of a plaintiff's request for the extension of time, and prejudice todefendant' " (Furze vStapen, 161 AD3d 827, 828 [2018], quoting Leader v Maroney, Ponzini &Spencer, 97 NY2d 95, 105-106 [2001]; see HSBC Bank USA, N.A. v Oqlah, 163 AD3d 928, 929-930[2018]; Bumpus v New York City Tr.Auth., 66 AD3d 26, 32 [2009]).
The Supreme Court providently exercised its discretion in denying Ewing's first motion todismiss the complaint and granting the plaintiff's cross motion for an extension of time to serveEwing. The complaint demonstrated a potentially meritorious cause of action, the action wastimely commenced, and the plaintiff exercised diligence in attempting to effect proper service onEwing within the 120-day period (see CPLR 306-b; Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 162 AD3d 742,744 [2018]; Furze v Stapen, 161 AD3d at 828; Gabbar v Flatlands Commons, LLC, 150 AD3d 1084, 1084-1085[2017]; Thompson v City of NewYork, 89 AD3d 1011, 1012 [2011]). Additionally, the statute of limitations had expiredby the time the plaintiff made the cross motion, the plaintiff promptly cross-moved for anextension of time to serve Ewing, and there was no prejudice to Ewing attributable to the delay inservice (see Chan v Zoubarev, 157AD3d 851, 852 [2018]; Singh vTrahan, 153 AD3d 961, 961 [2017]; Castillo v JFK Medport, Inc., 116 AD3d 899, 900 [2014];Thompson v City of New York, 89 AD3d at 1012).
The Supreme Court also providently exercised its discretion in denying Ewing's secondmotion to dismiss the complaint and granting the plaintiff's cross motion for a second extensionof the time to serve Ewing (see EmigrantBank v Estate of Robinson, 144 AD3d 1084, 1086 [2016]; Dhuler v ELRAC, Inc., 118 AD3d937, 939 [2014]; Estey-Dorsa vChavez, 27 AD3d 277, 278 [2006]). Ewing maintains that he should have been served atan address which differed from the Strauss Street address listed on the police report, as well asthe Atlantic Avenue address and the Georgia address. However, a search of the DMV recordsconducted on June 23, 2017, more than six weeks after the traverse hearing, reflected that theAtlantic Avenue address, where the plaintiff had attempted to effectuate service, was the currentdocumented address for Ewing. Since the record demonstrates that Ewing failed to notify theDMV of his change of residence, as required by Vehicle and Traffic Law § 505 (5),he was estopped from raising a claim of defective service (see Canelas v Flores, 112 AD3d 871, 872 [2013]; Hidalgo v Cruiser Taxi Corp., 101AD3d 950, 951 [2012]; Kalamadeen v Singh, 63 AD3d 1007, 1009 [2009]; Walker v Reyes, 59 AD3d 436,437 [2009]; Kandov v Gondal, 11AD3d 516 [2004]; Sherrill v Pettiford, 172 AD2d 512, 513 [1991]).
Furthermore, we note that "the more flexible 'interest of justice' standard accommodates lateservice that might be due to mistake, confusion, or oversight, so long as there is no prejudice tothe defendant" (Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 162 AD3d at 744,quoting Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). Here, the plaintiffdemonstrated that there was no demonstrable prejudice to Ewing, particularly in light of evidencethat he had actual notice of the action (see Matthews v Barrau, 150 AD3d 836, 839 [2017]; DiBuono v Abbey, LLC, 71 AD3d720 [2010]). Indeed, the record indicates that Ewing served an answer to the complaint inApril 2015, shortly after the expiration of the 120-day period for service (see Dhuler vELRAC, Inc., 118 AD3d at 939). Accordingly, under the circumstances of this case, weagree with the Supreme Court's determination, in effect, that the plaintiff was entitled to a secondextension of time under the interest of justice standard.
Ewing's remaining contentions are without merit. Mastro, J.P., Austin, Roman andBrathwaite Nelson, JJ., concur.