Rivera v. Ostad

37 A.D.3d 374, 829 N.Y.S.2d 901

Opinion

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 21, 2005, which denied appellant’s motion to dismiss the complaint and granted plaintiff’s cross motion for an order extending the 120-day period in which to serve appellant and to deem the second service on appellant timely, unanimously affirmed, without costs.

Appellant did in fact receive a complaint, retain counsel and serve an answer with five affirmative defenses. As the motion court held, proper service was effected only 42 days after the end of the statutory 120-day period (CPLR 306-b). The court providently exercised its discretion, in the interest of justice, in granting plaintiff an extension of time to serve the summons and complaint (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Concur—Saxe, J.P, Nardelli, Buckley, Gonzalez and Sweeny, JJ.