Seon Uk Lee v. Corso

300 A.D.2d 385, 750 N.Y.S.2d 781

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2002
• Status: Published

Opinion

—In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Colar, J.), dated January 3, 2002, as denied their cross motion pursuant to CPLR 306-b for an extension of time in which to serve the summons and complaint.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the cross motion is granted.

After conducting a hearing to determine the validity of service of process, the Supreme Court dismissed the complaint because the plaintiffs failed to effect proper service, and denied the plaintiffs’ cross motion for an extension of time to serve. However, “CPLR 306-b, which permits the Supreme Court to extend a plaintiff’s time to serve a summons and complaint for ‘good cause shown or in the interest of justice,’ is applicable where service, timely made within the 120-day period, is subsequently found to have been defective” (Citron v Schlossberg, 282 AD2d 642; see Watler v Riccuiti, 282 AD2d 741; Murphy v Hoppenstein, 279 AD2d 410; Gurevitch v Goodman, 269 AD2d 355). Upon consideration of the relevant factors in the interest of justice, the plaintiffs should have been given an extension of time to serve the summons and complaint on the defendants, and thus, the cross motion should have been granted (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95). Santucci, J.P., Krausman, Crane and Mastro, JJ., concur.