Campbell v. Starre Realty Co.

283 A.D.2d 161, 724 N.Y.S.2d 584, 2001 N.Y. App. Div. LEXIS 4253

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2001
• Status: Published

Opinions

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 14, 1999, which, insofar as appealed from, denied defendant-appellant’s motion to dismiss the action for noncompliance with CPLR 306-b, and granted plaintiffs cross motion to extend the time in which to serve the summons and complaint on defendant nunc pro tunc to the time that service was made on it, affirmed, without costs.

Plaintiffs time to serve the summons and complaint was properly extended upon an adequate showing that her failure to serve defendant within 120 days of filing was due to the dissolution of her attorney’s prior law firm, and in the absence of a showing by defendant that it was prejudiced as a result of the slight delay (see, Bayer v Domino Media, 147 AD2d 413; Busler v Corbett, 259 AD2d 13). We reject defendant’s argument that the failure to make timely service, or to seek an extension of time within the 120-day period, was a pleading default requiring a showing of merit.

The concurrence would engraft such a requirement on the strength of a case decided nine years before the statute was rewritten to add CPLR 306-b, which merely requires a showing of “good cause” why service was not made within the time provided in the section. The statute was rewritten to accord New York courts the same type of flexibility enjoyed by Federal courts to extend the time for service of the summons and complaint and such extensions “should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service” (Senate Mem in Support of L 1997, ch 476, 1997 McKinney’s Session Laws of NY, at 2457; see, 1997 NY Legis Ann, at 319). There is no mention of a requirement of a showing of merit. Concur — Mazzarelli, Andrias and Lerner, JJ.