Opinion
No. 359.
February 27, 2007.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about December 21, 2005, which denied appellant's motion to dismiss the complaint and granted plaintiff's cross motion for an order extending the 120-day period in which to serve appellant and to deem the second service on appellant timely, unanimously affirmed, without costs.
Fumuso, Kelly, DeVerna, Snyder, Swart Farrell, LLP, Hauppauge (Scott G. Christesen of counsel), for appellant.
PeÑa Kahn, PLLC, Bronx (Hayley A. Siegel of counsel), for respondent.
Before: Saxe, J.P., Nardelli, Buckley, Gonzalez and Sweeny, JJ.
Appellant did in fact receive a complaint, retain counsel and serve an answer with five affirmative defenses. As the motion court held, proper service was effected only 42 days after the end of the statutory 120-day period (CPLR 306-b). The court providently exercised its discretion, in the interest of justice, in granting plaintiff an extension of time to serve the summons and complaint ( see Leader v Maroney, Ponzini Spencer, 97 NY2d 95).