Thompson v. City of New York

Appellate Division of the Supreme Court of New York

Thompson v. City of New York

89 A.D.3d 1011, 933 N.Y.2d 701

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 22, 2011

StatusPublished

Cited by30 cases

This text of 89 A.D.3d 1011 (Thompson v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Thompson v. City of New York, 89 A.D.3d 1011, 933 N.Y.2d 701 (N.Y. Ct. App. 2011).

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Opinion

[1012]*1012The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant Stephen Buonavita (hereinafter the defendant) which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and granting that branch of the plaintiffs cross motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; DiBuono v Abbey, LLC, 71 AD3d 720 [2010]; Rosenzweig v 600 N. St., LLC, 35 AD3d 705, 706 [2006]). When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant” (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2009]). Here, the record established that the plaintiff exercised diligence by timely filing and twice attempting to serve the defendant with the summons and complaint pursuant to CPLR 308 (4) within the 120-day period following the filing of the summons and complaint, although those attempts to serve the defendant were ultimately deemed defective (see DiBuono v Abbey, LLC, 71 AD3d at 720; Earle v Valente, 302 AD2d 353, 354 [2003]). Moreover, if the Supreme Court did not grant an extension of time to the plaintiff to serve the summons and complaint, the statute of limitations would have barred the plaintiffs claims against the defendant, which the plaintiff demonstrated were potentially meritorious (see DiBuono v Abbey, LLC, 71 AD3d at 720; Beauge v New York City Tr. Auth., 282 AD2d 416 [2001]; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). The plaintiff also demonstrated that he promptly cross-moved for an extension of time to serve the defendant, and there was .no demonstrable prejudice to the defendant (see DiBuono v Abbey, LLC, 71 AD3d at 720). Rivera, J.P., Eng, Belen and Austin, JJ., concur.

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[1012]*1012The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant Stephen Buonavita (hereinafter the defendant) which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and granting that branch of the plaintiffs cross motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; DiBuono v Abbey, LLC, 71 AD3d 720 [2010]; Rosenzweig v 600 N. St., LLC, 35 AD3d 705, 706 [2006]). When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant” (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2009]). Here, the record established that the plaintiff exercised diligence by timely filing and twice attempting to serve the defendant with the summons and complaint pursuant to CPLR 308 (4) within the 120-day period following the filing of the summons and complaint, although those attempts to serve the defendant were ultimately deemed defective (see DiBuono v Abbey, LLC, 71 AD3d at 720; Earle v Valente, 302 AD2d 353, 354 [2003]). Moreover, if the Supreme Court did not grant an extension of time to the plaintiff to serve the summons and complaint, the statute of limitations would have barred the plaintiffs claims against the defendant, which the plaintiff demonstrated were potentially meritorious (see DiBuono v Abbey, LLC, 71 AD3d at 720; Beauge v New York City Tr. Auth., 282 AD2d 416 [2001]; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). The plaintiff also demonstrated that he promptly cross-moved for an extension of time to serve the defendant, and there was .no demonstrable prejudice to the defendant (see DiBuono v Abbey, LLC, 71 AD3d at 720). Rivera, J.P., Eng, Belen and Austin, JJ., concur.

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89 A.D.3d 1011, 933 N.Y.2d 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-city-of-new-york-nyappdiv-2011.

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