Opinion
No. 2022-03051 Index No. 700369/22
10-30-2024
George J. Duckett, appellant, v. Scott M. Stringer, defendant.
George J. Duckett, Jamaica Estates, NY, appellant pro se.
George J. Duckett, Jamaica Estates, NY, appellant pro se.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, LILLIAN WAN, JJ.
DECISION & ORDER
Appeal by the plaintiff from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 30, 2022. The order denied the plaintiff's motion pursuant to CPLR 306-b for an extension of time to serve the defendant with the summons and complaint.
ORDERED that the order is affirmed, without costs or disbursements.
On April 15, 2021, the plaintiff commenced this action against the defendant. Although the plaintiff mailed a copy of the complaint to the defendant, he did not serve the defendant within 120 days, as required by CPLR 306-b. According to the plaintiff's affidavit of service, the defendant was served with the summons and complaint by delivery to his authorized agent on August 24, 2021.
In October 2021, the plaintiff moved pursuant to CPLR 306-b for an extension of time to serve the defendant with process. In an order entered March 30, 2022, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
"Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for 'good cause shown' or 'in the interest of justice'" (BAC Home Loans Servicing, L.P. v Tessler, 208 A.D.3d 619, 621, quoting CPLR 306-b; see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104; Turner v Sideris, 209 A.D.3d 915, 916). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Wells Fargo Bank, N.A. v Fameux, 201 A.D.3d 1012, 1014; see Marzan v Petit-Frere, 220 A.D.3d 852; Bumpus v New York City Tr. Auth., 66 A.D.3d 26, 31-32). Here, the plaintiff failed to establish that he exercised reasonably diligent efforts in attempting to effectuate proper service upon the defendant and, thus, failed to show good cause (see Marzan v Petit-Frere, 220 A.D.3d at 853; Marjam Supply Co., Inc. v Warwick Props., Inc., 217 A.D.3d 853, 855; Turner v Sideris, 209 A.D.3d at 916).
"If good cause for an extension is not established, courts must consider the broader interest of justice standard of CPLR 306-b" (State of New York Mtge. Agency v Braun, 182 A.D.3d 63, 66; see Bumpus v New York City Tr. Auth., 66 A.D.3d at 32). Under the interest of justice standard, "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 v Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-106; see Gooden v New York City Health & Hosps. Corp., 216 A.D.3d 1143, 1145). Contrary to the plaintiff's contention, he did not establish that an extension was warranted in the interest of justice, since the plaintiff exhibited a lack of diligence and failed to establish a potentially meritorious cause of action (see Fink v Dollar Mart, 186 A.D.3d 1197, 1199; Deutsche Bank Natl. Trust Co. v Campbell, 172 A.D.3d 1310, 1312; Hourie v North Shore-Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp., 150 A.D.3d 707, 709). Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion.
BRATHWAITE NELSON, J.P., MILLER, DOWLING and WAN, JJ., concur.