Scarabaggio v. Olympia & York Estates Co.

278 A.D.2d 476, 718 N.Y.S.2d 392, 2000 N.Y. App. Div. LEXIS 13851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 2000
• Status: Published

Opinions

In an action to recover damages for personal injuries, the defendant Olympia & York Estates Company appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated February 8, 2000, which granted the plaintiffs motion pursuant to CPLR 306-b for an extension of time in which to serve the summons and complaint upon it, and denied its cross motion pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs motion pursuant to CPLR 306-b for an extension of time in which to serve the defendant Olympia & York Estates Company (hereinafter Olympia) in the interest of justice (see, Leader v Maroney, Ponzini & Spencer, 276 AD2d 194 [decided herewith]; Hafkin v North Shore Univ. Hosp., 279 AD2d 86 [decided herewith]; Ageyeva v Always Beautiful, 274 AD2d 363; Busier v Corbett, 259 AD2d 13).

Although the summons and complaint were filed before the expiration of the Statute of Limitations, the plaintiffs claim will be extinguished if her motion is not granted, as the Statute of Limitations has since expired. In addition, the plaintiff promptly moved for an extension pursuant to CPLR 306-b after discovering that Olympia had not been served within the 120-day statutory period. Olympia failed to demonstrate that it will be prejudiced by the granting of the plaintiffs motion (see, Leader v Maroney, Ponzini & Spencer, supra; Hafkin v North Shore Univ. Hosp., supra; Busler v Corbett, supra).

CPLR 306-b gives the court the discretion to grant an extension of time to serve “upon good cause shown or in the interest of justice” (emphasis supplied). The dissent relies upon a Memorandum of the New York State Senate in support of the statute (see, Mem of Senate in Support of L 1997, ch 476, 1997 McKinney’s Session Laws of NY, at 2456-2457) in imposing a threshold requirement that the plaintiff demonstrate reasonable diligence in attempting service before an extension may be granted. Where an extension in the interest of justice is requested, the court may consider all of the relevant factors before making its determination. No one factor, however, is dispositive (see, Leader v Maroney, Ponzini & Spencer, supra).

Olympia further contends that the extension was improperly granted because it was not the proper party to sue, however; the record is insufficient to resolve this issue. In any event, Olympia can raise this defense in its answer.

Olympia’s remaining contentions are without merit. O’Brien, J. P., Sullivan and H. Miller, JJ., concur.