The following electronically-filed papers were read upon this motion: Notice of Motion/Order to Show Cause 2-8 Answering Papers 11 Reply 12-13 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Plaintiff moves this Court for an Order granting an extension of his time to serve the summons and complaint on the defendants and permitting service of the summons and complaint upon defendants’ insurance carrier, New York Central Mutual Fire Insurance Company (NYCM). Defendants, for the purpose of the instant motion only, oppose the relief requested. The Court notes that the defendants were served with the instant motion, as was NYCM. NYCM has not submitted any separate opposition to the instant motion. CPLR §306-b requires service to be made within one hundred twenty days after the filing of the summons and complaint. An extension of time for service is a matter within the court’s discretion, and CPLR §306-b provides two separate standards by which to measure an application for an extension of time to serve (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]). “If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (CPLR §306-b). In this case, the summons and complaint were filed on January 8, 2019, and, according to plaintiff’s counsel, the pleadings were sent to process servers on January 14, 2019. The time to serve defendants pursuant to the statute expired on or about May 9, 2019. Further according to plaintiff’s counsel, due to “a secretarial inadvertence,” the law firm discovered on June 7, 2019 that the summons and complaint had not been served on defendants. Fourteen (14) days later, on June 21, 2019, the instant motion was filed. Plaintiff seeks an extension of the time to serve defendants in the interests of justice. “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, 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 meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (Leader, supra at 105-06). Here, the plaintiff’s claim would be extinguished by the applicable statute of limitations if an extension is not granted. The certified police accident report annexed to plaintiff’s motion establishes that a motor vehicle accident involving plaintiff and defendant Moreno occurred on January 12, 2016. Defendant Galeas-Acosta is listed thereon as the owner of the vehicle that Moreno operated on the date of the accident. At this juncture, for the purposes of this motion, the Court notes that the accident report designates the accident as involving a left turn made by Moreno, in front of plaintiff’s oncoming vehicle. The Court also takes judicial notice of its own records reflecting that a related action arising from the same accident brought by one of Moreno’s passengers, identified by Index No. 600446/2017 (Ford, J.), has been pending against Moreno and Galeas-Acosta since 2017. On September 27, 2019, that action wherein Gamble was named as a defendant was discontinued by stipulation filed in NYSCEF. In addition, another action brought by another of Moreno’s passengers was filed in 2017 (Index No. 605816/2017, Rouse, J.). A stipulation of discontinuance as to all defendants named in that action, including Gamble, was filed in NYSCEF on September 6, 2019. Accordingly, not only does plaintiff appear to have a potentially meritorious cause of action, but the named defendants in this action have long been aware of the issues and claims arising from this same accident; therefore, these named defendants in this action are not prejudiced by an extension of time to serve them with the summons and complaint. Moreover, plaintiff’s delay in seeking an extension is not, in this Court’s view, lengthy. Only twenty-nine (29) days passed from the expiration of the statutory 120 days until plaintiff’s counsel discovered that defendants had not been served, and only 14 days passed from that discovery until plaintiff filed the instant motion, for a total of forty-three (43) days from the expiration of the 120-day period. The Court does not find this delay inordinately lengthy, nor is the failure to serve defendants within the 120-day period attributable to plaintiff himself. Moreover, plaintiff’s counsel’s request for an extension to serve is reflective of its own discovery of the error, not in response to any motion to dismiss made by defendants. Defendants’ opposition principally addresses only the “good cause” standard for granting an extension of time to serve the summons and complaint, which plaintiff does not request by his motion; therefore, defendants’ opposition is inapposite in this regard. With respect to defendants’ attempt to defeat the request for an extension in the interests of justice, defendants’ assertion that plaintiff presents only an uncertified police report in support of his claim is wrong; the report is certified. Moreover, defendants disingenuously claim that they had no prior notice of this claim. Defendants’ vague statement that they “are surely prejudiced herein as the claim would not be viable since the Statute had run” is unavailing in establishing prejudice. Furthermore, if the defendants are referring to the applicable statute of limitations (CPLR §214), it does not appear to have run prior to the filing of the summons and complaint in this action. Plaintiff’s motion is granted. Plaintiff shall serve each of the defendants with the summons and complaint on or before December 4, 2019. Inasmuch as it is apparent that defendants’ insurer (NYCM) has been aware of this accident since March 17, 2017,1 and since NYCM does not oppose the instant motion, plaintiff is permitted to serve NYCM with the summons and complaint. The foregoing constitutes the Decision and Order of this Court. Dated: November 4, 2019 Riverhead, NY
