Opinion
2011-12-6
Leon O. WOODS, Plaintiff–Respondent, v. M.B.D. COMMUNITY HOUSING CORPORATION, etc., et al., Defendants–Appellants.
Daniel J. Sweeney & Associates, PLLC, White Plains (Brian M. Hussey of counsel), for appellants. Timothy P. Devane, New York, for respondent.
Daniel J. Sweeney & Associates, PLLC, White Plains (Brian M. Hussey of counsel), for appellants. Timothy P. Devane, New York, for respondent.
TOM, J.P., ANDRIAS, ACOSTA, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about January 19, 2010, which denied defendants' motion to dismiss the complaint pursuant to CPLR 3211 based upon improper service of process, and denied, as moot, plaintiff's cross motion for an extension of time within which to serve defendants pursuant to CPLR 306–b, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, defendants' motion granted, unless, within 120 days from the date of entry of this order, plaintiff effects proper service on defendants, and plaintiff's cross motion to extend his time to serve granted as indicated.
At the traverse hearing, plaintiff failed to satisfy his burden of establishing proper service by a preponderance of the evidence ( see Chaudry Constr. Corp. v. James G. Kalpakis & Assoc., 60 A.D.3d 544, 875 N.Y.S.2d 78 [2009]; Elm Mgt. Corp. v. Sprung, 33 A.D.3d 753, 754–755, 823 N.Y.S.2d 187 [2006]; Continental Hosts v. Levine, 170 A.D.2d 430, 565 N.Y.S.2d 222 [1991] ). The process server did not produce his log book, and neither his affidavits of service nor his testimony established a sufficient basis for his belief that the person he allegedly served was authorized to accept service on behalf of the corporate defendants. Further, defendants' current property manager, who was an assistant manager at the time of the purported service, testified that the address listed on the affidavit of service was not defendants' actual place of business, that defendants had no relation to the incorrect address, and that the person allegedly served was never defendants' employee and was not an individual authorized to accept service.
Plaintiff's cross motion for an extension of time to serve the summons and complaint pursuant to CPLR 306–b should be granted in the interest of justice ( 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]; Wishni v. Taylor, 75 A.D.3d 747, 749, 903 N.Y.S.2d 813 [2010]; Earle v. Valente, 302 A.D.2d 353, 354, 754 N.Y.S.2d 364 [2003] ). To meet the “interest of justice” standard, the court must make “a careful judicial analysis of the factual setting of the case and a balancing of the competing interests,” including the “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 at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018). While this action was timely commenced by proper filing, plaintiff's claim would be extinguished without an extension since the statute of limitations has expired. Merit is demonstrated via plaintiff's December 2006 deposition testimony that he was injured by a broken window, caused by the faulty roof of defendants' building. Prejudice to defendants is mitigated by the facts that they or their insurers had been on notice of the underlying incident for more than two years preceding the action's commencement, counsel had engaged in preliminary settlement negotiations during that period, and plaintiff provided copies of his relevant medical records and photographs of the accident area in 2006 ( see Frank v. Garcia, 84 A.D.3d 654, 655, 923 N.Y.S.2d 529 [2011]; DiBuono v. Abbey, LLC, 71 A.D.3d 720, 895 N.Y.S.2d 726 [2010] ).