Oliva v. The Long Island R.R. Co.

Full title: BENEDETTO A. OLIVA and BARBARA E. OLIVA, Plaintiffs, v. THE LONG ISLAND…

Court: Supreme Court, Nassau County

Date published: Mar 21, 2019

2019 N.Y. Slip Op. 34526 (N.Y. Sup. Ct. 2019)

Opinion

Index 610542/17

03-21-2019

BENEDETTO A. OLIVA and BARBARA E. OLIVA, Plaintiffs, v. THE LONG ISLAND RAIL ROAD COMPANY, Defendant. Motion Seq. Nos. 01, 02

HON. SHARON M. J. GIANELLI, JUSTICE

Unpublished Opinion

Present: Hon. Sharon M.J. Gianclli, J.S.C.

HON. SHARON M. J. GIANELLI, JUSTICE

Papers submitted on this motion:

Plaintiff s Notice of Motion X Affirmation in Support_____ X

Defendant's Cross-Motion _____ X

Plaintiffs Reply and Opposition to Cross-Motion _____X

Defendant's Reply ______X

Plaintiffs move pursuant to CPLR § 306 -b extending time to serve the summons and complaint in the interest of justice. Defendant cross-moves to dismiss the complaint pursuant to CPLR § 306-b asserting that the summons and complaint were not filed timely and the action should be dismissed because Plaintiff has not demonstrated good cause or that an interest of justice extension to serve the summons and complaint should be granted.

Underlying Facts/Procedural History

This is a negligence action in which Plaintiffs seek to recover for personal injuries allegedly sustained by them as a result of a Long Island Rail Road Company ("LIRR") train collision that occurred on October 8, 2016. The collision was with a maintenance train traveling on the same track as the Eastbound LIRR train in which Plaintiffs were passengers. The location of occurrence was approximately one-half mile east of the New Hyde Park train station (see Summons and Complaint, Plaintiffs' Exhibit "E").

Plaintiff commenced this action by filing a Summons and Complaint on or about October 5, 2017.

On December 27, 2016, notices of claim for each Plaintiff were timely served upon the Defendant and Defendant acknowledged receipt (see Plaintiffs' Exhibit "A", Notices of Claims and Affidavits of Service; Exhibit "B", LIRR letter).

On January 11, 2017, counsel for LIRR acknowledged its representation of Defendant and made LIRR equipment involved in the subject accident available for inspection (see Plaintiffs' Exhibit "C", letter from Defendant's counsel).

By notice to take oral examination pursuant to New York Public Authorities Law § 1276(4), Defendant's counsel requested an oral examination of each of the Plaintiffs to take place on March 23, 2017 (see Plaintiffs' Exhibit "D", Defendants Notices to take oral exam of Plaintiffs).

Oral examinations were conducted pursuant to Defendants notices at American Stenographic Reporters conducted by Defense counsel (see Plaintiffs' Affirmation at para. 9, 10).

Thereafter, Plaintiffs state that Defendant was not served with the summons and complaint. Plaintiffs' counsel asserts that his legal assistant, employed at that time, was directed to forward the summons and complaint and notice of efiling to the process server. This did not occur. Upon reviewing this former legal assistant's work, it was discovered by counsel that this was not done. Thus, Plaintiffs now seek leave of Court to belatedly serve the summons and complaint.

The within application was made on December 20, 2018 and was marked submitted on February 21, 2019.

Analysis

Pursuant to CPLR § 306-b, a Plaintiff is required to serve a defendant within 120 days of the commencement of the action. "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" (CPLR 306-b). Therefore, in order for Plaintiff to prevail, it has to establish either that it has good cause for the failure to serve Defendant within 120 days of the commencement of the action, or that the court should grant the extension in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97N.Y.2d 95 [2001]; Busier v. Corbett, 259 A.D.2d 13 [4^th Dept. 1999]).

"An extension of time for service is a matter within the court's discretion" (Chan v. Zoubarev, 157 A.D.3d 851 [2d Dept. 2018] quoting Leader v. Maroney, Ponzini & Spence, supra. 'Good cause' and 'interest of justice' are two separate and independent statutory standards (see Leader v. Maroney, Ponzini & Spencer, supra at 104).

To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v. Maroney, Ponzini & Spencer, supra at 105-06). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v. Zaltsman, 39 A.D.3d 852 [2d Dept. 2007]; Lipschitz v. McCann, 13 A.D.3d 417 [2d Dept. 2004]), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v. New York Univ., 18 A.D.3d 820 [2d Dept. 2005]; Baione v. Central Suffolk Hosp., 14 A.D.3d 635, 636-637 [2d Dept. 2005].

"If good cause for an extension is not established, courts must consider the 'interest of justice' standard of CPLR 306-b (see e.g. Busier v. Corbett, 259 A.D.2d 13, 17 [4^th Dept. 1999]). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (see Leader v. Maroney, Ponzini & Spencer, supra). The interest of justice standard is broader than the good cause standard (see Mead v. Singleman, 24 A, D.3d 1142, 1144 [3d Dept. 2005]), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v. Maroney, Ponzini & Spencer, supra at 105-106; Matter of Jordan v. City of New York, 38 A.D.3d 336, 339 [1^st Dept. 2007]; Estey-Dorsa v. Chavez, 27 A.D.3d 277 [1^st Dept. 2006]; Mead v. Singleman, supra at 1144; de Vries v. Metropolitan Tr. Auth., 11 A.D.3d 312, 313 [1^st Dept. 2004].

The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider 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.

Leader v. Maroney, Ponzini & Spencer, supra.

Here, applying an interest of justice analysis, under the facts presented, Plaintiffs application is Granted. The summons and complaint demonstrate the merits of the action, the summons and complaint were timely filed, the statute of limitations expired by the time Plaintiffs moved to extend the time for service and there is no demonstrable prejudice to the Defendant which would militate against granting the extension of time to serve Defendant (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-106 [2001]; Matter of 76 S. Central Assoc, v. Department of Assessment, 157 A.D.3d 666 [2d Dept. 2018]; Gabbar v Flatlands Commons, LLC, 150 A.D.3d 1084, 1084-1085 [2mi];Ruddv. City of New York, 115 A.D.3d729 [2d Dept. 2014]; Abu-Aqlein v El-Jamal, 44 A.D.3d 884, 885 [2007]; Rosenzweig v 600 N. St., LLC, 35 A.D.3d 705, 706 [2006]); Beauge v New York City Tr. Auth., 282 A.D.2d 416 [2001]; 667 Busier v Corbett, 259 A.D.2d 13 [1999]; cf Bahadur v New York State Dept. of Correctional Servs., 88 A.D.3d 629, 630 [2011]). Specifically, it has been demonstrated by Plaintiffs that Defendant had notice of the facts of the accident immediately upon its occurrence; immediately investigated the accident and equipment (see Plaintiffs Exhibit "F"); had notice of the specific claims of these Plaintiffs within the statutory period for filing the Notices of Claim; and took testimony from the Plaintiffs. Under these facts, the Court determines that late service is appropriate in the interest of justice.¹

1 The Court need not rule upon the issue of due diligence in light of its determination. In any event, good cause has been demonstrated in this Court's view since it is apparent Plaintiffs complied with all of the requisite requirements up until the point where law office failure resulted in a lack of service upon Defendant.

Accordingly, it is hereby

ORDERED, that Plaintiffs application for an extension of time to serve DEFENDANT THE LONG ISLAND RAIL ROAD COMPANY, pursuant to CPLR § 306(b) is GRANTED and Plaintiffs' time to serve this Defendant is hereby extended for 120 days from the date of entry of this decision and Order; and it is further

ORDERED, that Defendant's application pursuant to CPLR § 306 -b to dismiss the complaint is DENIED; and it is further

ORDERED, that upon receipt of an answer interposed by Defendant, Plaintiffs are directed to file a request for a preliminary conference with the Court.

All applications not specifically addressed herein are DENIED.

This constitutes the Decision and Order of the Court.

Entered Mar 28 2019