Opinion
709 CA 19-00892
10-02-2020
Frederick P. BRADLEY, Plaintiff-Respondent, v. Robert REXCOAT and Jennifer Rexcoat, Defendants-Appellants.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANTS-APPELLANTS. VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendants appeal from an order that denied their motion seeking to vacate a prior order granting plaintiff's ex parte motion pursuant to CPLR 306-b to extend the time in which to serve them with a summons and notice. After weighing the relevant factors, including the "expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of ... plaintiff's request for the extension of time, and prejudice to defendant" ( Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 105-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ), we reject defendants' contention that Supreme Court (Dillon, J.) abused its discretion in granting the ex parte motion in the interest of justice (see generally Moss v. Bathurst , 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011] ). We note, in particular, that defendants' insurer received prompt notice of the accident at issue and had the opportunity to investigate. Thus, defendants failed to demonstrate that they were prejudiced by the delay in service (see Przespolewski v. Elderwood Health Care at Linwood , 55 A.D.3d 1327, 1328, 865 N.Y.S.2d 462 [4th Dept. 2008] ; see also Gabbar v. Flatlands Commons, LLC , 150 A.D.3d 1084, 1085, 55 N.Y.S.3d 353 [2d Dept. 2017] ; see generally Terrigino v. Village of Brockport , 88 A.D.3d 1288, 1288, 930 N.Y.S.2d 744 [4th Dept. 2011] ).