Fernandez v. McCarthy

2020 NY Slip Op 3079, 183 A.D.3d 539, 122 N.Y.S.3d 895

Opinion

Fernandez v McCarthy (2020 NY Slip Op 03079)

Fernandez v McCarthy

2020 NY Slip Op 03079

Decided on May 28, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 28, 2020
Renwick, J.P., Richter, Manzanet-Daniels, Singh, Moulton, JJ.

11574 27052/15E

[*1]Jose Fernandez, Plaintiff-Respondent,

v

Kevin McCarthy, Esq., et al., Defendants-Appellants, Cohen & Siegel, LLP, Defendant.

McMahon & McCarthy, Bronx (Matthew J. McMahon of counsel), for appellants.

The Perecman Firm, P.L.L.C., New York (Peter D. Rigelhaupt of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 24, 2019, which granted plaintiff's cross motion to extend the time to serve his complaint in the interests of justice and, in effect, denied defendants' motion to dismiss the complaint based on improper service, unanimously affirmed, without costs.

Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff's time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff's legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 28, 2020

CLERK