The Second Department, Pursuant to CPLR 306-b, Extends Time For Plaintiff to Serve Defendant After Lengthy Delay and Expiration of Statute of Limitations
Print Article- Posted on: Mar 18 2024
Actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a).1 Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant and, generally, such service must occur within 120 days after the Action is commenced. CPLR 306-b.2 “If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.” Id. The Leader Court made clear that, under CPLR 306-b, “good cause” and “the interest of justice” are “two separate standards by which to measure an application for an extension of time to serve” a defendant if service is not made within 120 days of the commencement of an Action. Leader, 97 N.Y.2d at 104. In this regard, the Leader Court recognized that because “good cause” and “the interest of justice” are “stated separately, joined by the word ‘or’ [t]hey cannot be defined by the same criteria; otherwise, one would have been sufficient.” Id. (citation omitted).
“To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service.” Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31 (2nd Dep’t 2009) (citing Leader); see also Wilmington Savings Fund Society, FSB v. James, 174 A.D.3d 835, 837 (2nd Dep’t 2019)). “Good cause will not exist where a plaintiff fails to make any effort at service or fails to make at least a reasonably diligent effort at service.” Bumpus, 66 A.D.3d at 31 (citations omitted). Where “good cause” is not established, “courts must consider the ‘interest of justice’ standard of CPLR 306-b.” Bumpus, 66 A.D.3d at 32 (citations omitted); see also Wilmington, 174 A.D.3d at 837.
Under the “interest of justice” standard, a court must analyze “the factual setting of the case and a balancing of the competing interests presented by the parties.” Gjurashaj v. ABM Industry Groups, LLC, 213 A.D.3d 479, 480 (1st Dep’t 2023) (citing Leader, internal quotation marks omitted); see also Wells Fargo Bank v. Barrella, 166 A.D.3d 711, 713 (2nd Dep’t 2018). In addition, while no single factor “is determinative,” courts may consider factors such as “diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant.” Id.
The Appellate Division, Second Department, addressed CPLR 306-b on March 13, 2024, in PNC Bank, National Ass’n v. Sarfaty, a residential mortgage foreclosure action. In 2013, the lender commenced its foreclosure action. Thereafter, the borrower interposed an answer asserting an affirmative defense of lack of personal jurisdiction due to improper service of process. Within sixty days of serving the answer, the borrower moved to dismiss the complaint pursuant to CPLR 3211(a)(8) due to the failure of service of process. Two years later, and before the borrower’s motion to dismiss was decided, the lender moved for summary judgment. Four years after the borrower moved to dismiss, the motion court issued an order which, “in effect, held in abeyance that branch of [the borrower]’s motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction due to improper service of process and directed that a traverse hearing be held to determine whether [the borrower] was properly served. After the hearing, the motion court granted the borrower’s motion to dismiss and denied, as moot, the lender’s motion for summary judgment.
Thereafter, the lender moved to vacate the dismissal order and for an order pursuant to CPLR 306-b extending the time to serve the summons and complaint on the borrower, which motion was granted. On the borrower’s appeal the Second Department affirmed and, in so doing, stated:
Pursuant to CPLR 306-b, a court may exercise its discretion to extend a plaintiff’s time to effectuate service for good cause shown or in the interest of justice….
To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The interest of justice standard requires a court to carefully analyze the factual setting of the case and to balance the competing interests presented by the parties…. The interest of justice standard is a broader standard than good cause, intended to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant.
Here, although the [lender] exhibited a lack of diligence in seeking an extension of time to serve the summons and complaint upon [the borrower], for example, by waiting more than one year after the issuance of the dismissal order before making the subject motion, the other relevant factors all favor the granting of such relief. Specifically, the [lender] timely commenced this action, but the statute of limitations had expired when the [lender] moved for the subject relief. In addition, the [lender] attempted service in a timely manner, and even though that service was defective, [the borrower] acquired actual notice of this action well within 120 days after its commencement. Moreover, [the borrower] did not demonstrate that his ability to defend against this action would be prejudiced in any way by the delay in service, and the [lender] submitted evidence of a potentially meritorious cause of action via incorporation by reference of its prior summary judgment motion, which included an affidavit of merit. Finally, the Supreme Court faulted both parties for delaying this action commenced in 2012. [Citations and internal quotation marks omitted.]
Footnotes
- This BLOG has previously addressed CPLR 304. See, e.g., [here] and [here].
- This BLOG has previously addressed CPLR 306-b. See, e.g., [here], [here], [here] and [here]. The history and import of CPLR 306-b, as discussed in prior BLOGS, is explained by the Court of Appeals in Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101 (2001).
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
