Opinion
2015-08-6
Kip A. HEATH, Respondent, v. Brian R. NORMILE, Defendant, and Joseph A. Pistoia, Appellant.
Hiscock & Barclay, LLP, Rochester (Aubrey A. Roman of counsel), for appellant. Gallagher Law Office, Binghamton (Brian R. Gallagher of counsel), for respondent.
Hiscock & Barclay, LLP, Rochester (Aubrey A. Roman of counsel), for appellant. Gallagher Law Office, Binghamton (Brian R. Gallagher of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., ROSE and LYNCH, JJ.
ROSE, J.
Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered June 18, 2014 in Broome County, which, among other things, denied defendant Joseph A. Pistoia's motion to dismiss the action against him for failure to timely serve the complaint.
By filing a summons with notice on the last day before the expiration of the statute of limitations, plaintiff commenced this action seeking to recover damages for injuries sustained when he was hit by a vehicle operated by defendant Joseph A. Pistoia (hereinafter defendant). Although plaintiff then mistakenly served defendant with a bare summons, defendant nevertheless responded with a demand for a complaint and, when no complaint was forthcoming, moved to dismiss the action for failure to comply with CPLR 305(b) and 3012(b). Plaintiff orally opposed the motion and, with Supreme Court's permission, filed written opposition after the return date and requested an extension of time to effect service of the complaint pursuant to CPLR 306–b. Supreme Court denied defendant's motion to dismiss and granted plaintiff an extension of time for service in the interest of justice. Defendant appeals.
We agree with Supreme Court that while plaintiff filed an adequate summons with notice prior to the expiration of the statute of limitations ( seeCPLR 304[a] ), his service of a bare summons was “a nullity” (Fulton v. State of New York, 35 A.D.3d 977, 978, 825 N.Y.S.2d 816 [2006], lv. denied8 N.Y.3d 809, 834 N.Y.S.2d 507, 866 N.E.2d 453 [2007]; see Matter of Hawkins v. McCall, 278 A.D.2d 638, 638, 718 N.Y.S.2d 98 [2000], lv. denied96 N.Y.2d 713, 729 N.Y.S.2d 440, 754 N.E.2d 200 [2001] ). In the absence of service, defendant's demand for a complaint was premature and did not invoke the time limits of CPLR 3012(b) ( see Ryan v. High Rock Dev., LLC, 124 A.D.3d 751, 752, 2 N.Y.S.3d 519 [2015]; Micro–Spy, Inc. v. Small, 9 A.D.3d 122, 125–126, 778 N.Y.S.2d 86 [2004] ). Accordingly, we find no error with respect to Supreme Court's denial of the motion to dismiss.
Turning to plaintiff's request for an extension of time to serve, the discretionary interest of justice standard allows a court to consider such factors as the plaintiff's diligence in attempting service, the expiration of the statute of limitations, the meritorious nature of the claim, the length of the delay, diligence in seeking an extension of time and prejudice to the defendant ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001]; Mead v. Singleman, 24 A.D.3d 1142, 1144, 806 N.Y.S.2d 783 [2005]; City of Albany v. Wise, 298 A.D.2d 783, 784, 750 N.Y.S.2d 653 [2002] ). Despite plaintiff's clear lack of diligence here, we perceive no abuse of discretion in Supreme Court's conclusion that an extension of time for service was warranted based upon the demonstration of merit, the expiration of the statute of limitations and, given plaintiff's communication and cooperation with defendant's insurance carrier well prior to the commencement of the action, the lack of any prejudice to defendant ( see Wishni v. Taylor, 75 A.D.3d 747, 749, 903 N.Y.S.2d 813 [2010]; Dujany v. Gould, 63 A.D.3d 1496, 1498, 882 N.Y.S.2d 343 [2009]; Mead v. Singleman, 24 A.D.3d at 1144, 806 N.Y.S.2d 783). Further, under the circumstances here, plaintiff's failure to file a formal notice of cross motion is not fatal to his request for an extension of time to permit service ( see Wechsler v. People, 13 A.D.3d 941, 942, 787 N.Y.S.2d 433 [2004]; Fox Wander W. Neighborhood Assn. v. Luther Forest Community Assn., 178 A.D.2d 871, 872, 577 N.Y.S.2d 729 [1991]; Guggenheim v. Guggenheim, 109 A.D.2d 1012, 1012–1013, 486 N.Y.S.2d 489 [1985] ). Finally, we find no abuse of the court's discretion in accepting plaintiff's late papers inasmuch as defendant was afforded an opportunity to reply ( see Associates First Capital v. Crabill, 51 A.D.3d 1186, 1187–1188, 857 N.Y.S.2d 799 [2008], lv. denied11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]; Pallete Stone Corp. v. Guyer Bldrs., 194 A.D.2d 1019, 1020, 599 N.Y.S.2d 644 [1993]; Whiteford v. Smith, 168 A.D.2d 885, 885, 564 N.Y.S.2d 806 [1990] ).
ORDERED that the order is affirmed, with costs. GARRY, J.P., EGAN JR. and LYNCH, JJ., concur.