Summary
finding that an eighteen-month delay precluded the grant of CPLR 306(b) extension
Summary of this case from Poventud v. N.Y.C. D.O.E.Opinion
Decided March 29, 2005.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered July 8, 2004. The Appellate Division affirmed an order of the Supreme Court, New York County (Marilyn Shafer, J.), which, insofar as appealed from, had denied defendant's motion to dismiss the personal injury complaint, and conditionally granted plaintiff's request for an extension of time to effect service pursuant to CPLR 306-b. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
In an action to recover under the Labor Law for injuries sustained at a construction accident, Supreme Court granted plaintiff an extension of time to effect late service of his complaint upon defendant general contractor in the interest of justice pursuant to CPLR 306-b.
The Appellate Division majority concluded that the relief granted was proper where plaintiff demonstrated an apparently meritorious claim; that plaintiff's newly retained counsel made a good faith, though flawed, attempt to serve defendant within the statutorily prescribed 120-day period following the filing of the summons and complaint two days prior to expiration of the statute of limitations; and that there was no showing that the grant of the requested extension would prejudice defendant.
Slate v. Schiavone Constr. Co., 10 AD3d 1, reversed.
Wilson, Elser, Moskowtiz, Edelman Dicker LLP, New York City ( Richard E. Lerner of counsel), for appellant.
Cascione Purcigliotti Galluzzi, P.C., New York City ( Thomas G. Cascione of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, defendant's motion to dismiss the complaint granted and the certified question answered in the negative. In view of the extreme lack of diligence shown by plaintiff, and the long delay (more than a year and a half after running of the statute of limitations) before defendant received any notice of the action, the courts below abused their discretion in granting plaintiff an extension to serve defendant "in the interest of justice" pursuant to CPLR 306-b ( see Leader v. Maroney, Ponzini Spencer, 97 NY2d 95, 105-106).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, etc.