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finding that the plaintiffs failed to establish the defendant "was served at his 'actual place of business' pursuant to CPLR 308" as "there was no showing that the appellant was physically present with regularity or regularly transacted business at the headquarters of the New York City Fire Department in Brooklyn where process was served"
Summary of this case from Wolongevicz v. Town of ManliusOpinion
2012-11-21
Samir SELMANI, et al., respondents, v. CITY OF NEW YORK, et al., defendants, Michael Reilly, etc., appellant.
Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller of counsel), for appellant. Tacopina & Arnold (Antin, Ehrlich & Epstein, LLP, New York, N.Y. [Jeffrey S. Antin and Emily Mann], of counsel), for respondents.
Thomas M. Bona, P.C., White Plains, N.Y. (James C. Miller of counsel), for appellant. Tacopina & Arnold (Antin, Ehrlich & Epstein, LLP, New York, N.Y. [Jeffrey S. Antin and Emily Mann], of counsel), for respondents.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In an action to recover damages for personal injuries, etc., the defendant Michael Reilly, individually, appeals from so much of an order of the Supreme Court, Kings County (Ash, J.), dated November 30, 2011, as denied his motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him, individually, for lack of personal jurisdiction and granted the plaintiffs' cross motion pursuant to CPLR 306–b for leave to extend the time to serve him with copies of the summons and complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The appellant correctly contends that the plaintiffs failed to establish that he was served at his “actual place of business” pursuant to CPLR 308(2). A person's “actual place of business” must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location ( see Katz v. Emmett, 226 A.D.2d 588, 589, 641 N.Y.S.2d 131;Bridgehampton Natl. Bank v. Watermill Hgts. Assoc., 157 Misc.2d 246, 250, 596 N.Y.S.2d 321; Anon Realty Assoc. v. Simmons Stanley, 153 Misc.2d 954, 957, 583 N.Y.S.2d 778;DiGiuseppe v. DiGiuseppe, 70 Misc.2d 188, 189, 333 N.Y.S.2d 245). Here, there was no showing that the appellant was physically present with regularity or regularly transacted business at the headquarters of the New York City Fire Department in Brooklyn where process was served ( see Matter of Hennessey v. DiCarlo, 21 A.D.3d 505, 506, 800 N.Y.S.2d 576;Jiminez v. City of New York, 5 A.D.3d 182, 183, 772 N.Y.S.2d 515;Williams v. City of New York, 2010 N.Y. Slip Op. 30022[U] [Sup.Ct.N.Y. County] ). Accordingly, the attempted service of the summons and complaint pursuant to CPLR 308(2) was defective as a matter of law ( see Munoz v. Reyes, 40 A.D.3d 1059, 836 N.Y.S.2d 698;Rios v. Zorrilla, 8 A.D.3d 463, 778 N.Y.S.2d 694).
The Supreme Court, however, providently exercised its discretion in granting the plaintiffs' cross motion pursuant to CPLR 306–b for leave to extend the time to serve the appellant with copies of the summons and complaint in the interest of justice ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018). Here, while the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the timely service of process was subsequently found to have been defective, and the appellant had actual notice of the action within 120 days of commencement of the action ( see Rosenzweig v. 600 N. St., LLC, 35 A.D.3d 705, 826 N.Y.S.2d 680;Chiaro v. D'Angelo, 7 A.D.3d 746, 776 N.Y.S.2d 898;Beauge v. New York City Tr. Auth., 282 A.D.2d 416, 722 N.Y.S.2d 402). Furthermore, the plaintiffs demonstrated a potentially meritorious cause of action, and there was no prejudice to the appellant attributable to the delay in service ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018;Rosenzweig v. 600 N. St., LLC, 35 A.D.3d at 706, 826 N.Y.S.2d 680).