Zegelstein v. Faust

2017 NY Slip Op 132, 146 A.D.3d 499, 43 N.Y.S.3d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2017
• Docket: 2714 651198/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 30, 2015, which granted defendants’ motions to dismiss the complaint for lack of in personam jurisdiction, and, on the ground of lack of jurisdiction, denied plaintiffs’ cross motion for leave to extend the time for service and to amend the complaint, unanimously modified, on the law, to delete the factual findings that defendant Raymond, individually, entered into an agreement with plaintiffs and that he would compensate the plaintiffs for services performed, and to deny defendants’ motions, and the matter is remanded for consideration of plaintiffs’ cross motion, and otherwise affirmed, without costs.

The court erroneously concluded that it lacked jurisdiction to entertain plaintiffs’ cross motion for leave to extend the time for service and to amend the complaint as a result of plaintiffs’ failure to serve the summons with notice within 120 days of commencement, in violation of CPLR 306-b. The court was required to exercise its discretion to decide whether an extension of time for service was warranted upon good cause shown or in the interest of justice (CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).

The court having granted the motions to dismiss on an improper basis and without considering plaintiffs’ cross motion, we remand the matter for consideration of the cross motion (see Matter of Jordan v City of New York, 38 AD3d 336, 339 [1st Dept 2007]).

We decline to dismiss plaintiffs’ claims with prejudice or to sanction plaintiffs for filing a frivolous action.

Concur— Andrias, J.P., Moskowitz, Kapnick, Webber and Kahn, JJ.