Opinion
Index No. 603/13
05-15-2015
GARRISON CONTRACTING, INC., and KEVIN JONES, Plaintiffs, v. MEDINA, TORREY, MAMO & CAMACHO, P.C., LAW OFFICES OF MARLA B. RUBIN, DAVID TORREY and MARLA B. RUBIN, Defendants.
Wesley Mead, Esq. Robert S. Powers, Esq. Attorneys for the Plaintiffs 1540 August Road North Babylon, NY 11703 Michael G. Santangelo, Esq. Attorney for Def. Medina, Torrey Mamo & Camacho, PC 47 Beekman Street, Suite 103 Sleepy Hollow, NY 10591 David S. Torrey, Esq. Defendant, Pro Se 28 S. Main Street Winsted, CT 06098
SC 6/22/15 @ 9:30 AM
To commence the 30 day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties
DECISION & ORDER
Sequence No. 2
Motion Date 3/16/15
LUBELL, J.
The following papers were considered in connection with this motion by defendant, David Torrey, for an Order dismissing the complaint as against him pursuant to CPLR §306-b and/or CPLR §3211(a)(5) and plaintiffs' cross-motion for an Order pursuant to CPLR 306(b) extending the time for plaintiffs to serve the defendant, David Torrey, and for such other and further relief as to the Court seems just and proper:
| PAPERS | NUMBERED |
|---|---|
| MOTION TO DISMISSNOTICE OF CROSS MOTION/AFFIDAVIT/EXHIBITS A-F | |
| 2 | |
| MEMORANDUM OF LAW | 3 |
| AFFIRMATION IN OPPOSITION/EXHIBITS A-F | 4 |
| MEMORANDUM OF LAW | 5 |
By Decision & Order of February 17, 2015, the Court granted Torrey's motion to dismiss as unopposed. Thereafter, the Court was advised that the motion had in fact been adjourned. That decision is now vacated.
Plaintiffs bring this action for legal malpractice against, among others, the Law Firm of Medina, Torrey, Mamo & Camacho, P.C. (the "Firm") and one of its members in his individual capacity, David Torrey ("Torrey"), who personally handled the underlying litigation in an action entitled Town of Philipstown v. Garrison Contracting Inc. (Putnam County Index No. 324/2008; [the "Underlying Action"]). The thrust of this legal malpractice action is the failure of Defendants to have timely filed a notice of claim with the Town of Philipstown on behalf of Plaintiffs in connection with Plaintiffs' allegations against Philipstown, by way of amended answer with counter-claims in the Underlying Action and, in any event, the failure of Defendants to have sought leave to file a late notice of claim in connection therewith. Plaintiffs note that it was the very absence of a notice of claim and failure to have sought leave to file a late notice of claim that ultimately lead to the dismissal of Plaintiffs' counterclaim against Philipstown upon appeal (see Town of Philipstown v Garrison Contr., Inc., 85 AD3d 1014 [2d Dept 2011]).
The Firm and Torrey are sometimes collectively referred to as "Defendants".
This action was commenced upon the March 19, 2013 filing of the summons and complaint with the Putnam County Clerk. The Firm was served on June 7, 2013 upon the delivery of a copy of the summons and complaint to the Secretary of State. Issue was joined upon the Firm's service of its answer dated October 11, 2013. Plaintiffs did not serve Torrey with process until November 20, 2014, some twenty months after the commencement of the action and sixteen months after the expiration of section 306-b 120-day period.
Torrey now moves to dismiss on the grounds that service of the summons and complaint was not made within 120 days after commencement of the action (CPLR §306-b) and, in any event, that the action is untimely as against him (CPLR §3211[a][5]). In response, Plaintiffs move pursuant to 306-b for an extension of time to effectuate service upon Torrey.
Plaintiffs' motion is denied and Torrey's motion is granted.
Section 306-b of the CPLR provides in pertinent part:
Service of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good
cause shown or in the interest of justice, extend the time for service
The case of Bumpus v New York City Transit Authority (66 AD3d 26, 31 32 [2d Dept 2009] provides the following guidance:
The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d at 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-06, 736 N.Y.S.2d 291, 761 N.E.2d 1018). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v Zaltsman, 39 A.D.3d 852, 835 N.Y.S.2d 298; Lipschitz v McCann, 13 A.D.3d 417, 786 N.Y.S.2d 567), or fails to make at least a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 18 A.D.3d 820, 796 N.Y.S.2d 638; Baione v Central Suffolk Hosp., 14 A.D.3d 635, 636-637, 789 N.Y.S.2d 315; Busler v Corbett, 259 A.D.2d 13, 15, 696 N.Y.S.2d 615). By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 13 Misc.3d 1236(A), 2006 WL 3302836, quoting Eastern Refractories Co., Inc. v Forty Eight Insulations, Inc., 187 F.R.D. 503, 505; see also Greco v Renegades, Inc., 307 A.D.2d 711, 712, 761 N.Y.S.2d 426 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v Jackson, 3 Misc.3d 227, 235, 773 N.Y.S.2d 235 [difficulties associated with service abroad through the Hague Convention]).(Bumpus v New York City Tr. Auth., supra at 31-32).
To the extent that Plaintiffs advance a good cause argument, the Court finds that Plaintiffs have failed to establish good cause such as would warrant the granting of their application for an extension.
Plaintiffs failed to exercise due diligence in attempting to serve the summons and complaint upon Torrey within 120 days of the filing of the complaint, nor ever for that matter. It was only upon learning during the course of discovery that the Firm had allowed its malpractice insurance policy to lapse, had no assets and would not be able to satisfy any judgment, that Plaintiffs turned their attention to Torrey who had not yet been served with process. Despite Plaintiffs' ongoing knowledge of Torrey's whereabouts, availability and participation in the underlying lawsuit as a member of the Firm, Plaintiffs did not serve Torrey with process until November 20, 2014, some twenty months after the commencement of the action.
Furthermore, Plaintiffs' cross-motion for leave to extend time to effectuate service upon Torrey was only made in response to Torrey's motion to dismiss (see Posada v Pelaez, 37 AD3d 168 [1st Dept 2007][action dismissed for failure to serve defendant within 120-day period coupled with failure to move for extension of time to serve until faced with a motion to dismiss, about seven months after the 120-day period had expired, some three years after the cause of action accrued]; see also Braxton v McMillan, 76 AD3d 607, 608 [2d Dept 2010][case dismissed due to lack of due diligence in attempting service of summons and complaint with 120-day period, failure to seek extension of time until faced with motion to dismiss more than one year after filing of summons and complaint]).
The fact that no attempt to serve Torrey was made within the 120-day period after the filing of the summons and complaint, "in and of itself, establishes that no good cause was shown for an extension of time pursuant to CPLR 306-b to serve the defendant[] with process" (Valentin v Zaltsman, 39 AD3d 852 [2d Dept 2007] citing Riccio v Ghulam, 29 AD3d 558, 560 [2006]).
Even though the granting of an extension in the "interest of justice" does not require a showing of "reasonably diligent efforts at service as a threshold matter" (Valentin v Zaltsman, supra quoting Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]), the Court denies Plaintiffs motion on an "interest of justice" ground as well.
The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the
competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, 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, supra at 105-06).
Again, the Court notes that Plaintiffs' motion only follows Torrey's motion to dismiss (see Valentin v Zaltsman, supra) and, in any event, comes some nineteen months after the expiration of the 120-day period (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-06; Bumpus v New York City Tr. Auth., supra at 35). Perhaps most compelling in this matter, and even though Plaintiffs will be precluded from timely recommencing an action against Torrey, is the fact that the failure to have served Torrey was voluntary and was not due, in any part, to any action or inaction on the part of Torrey.
The Court is not impressed with Plaintiffs' "united in interest" argument. Even upon accepting Plaintiffs' assertion that Torrey is united in interest with the Firm (see Connell v Hayden, 83 AD2d 30, 45 [2d Dept 1981][interests united where one is vicariously liable for the actions of the other]), a position vehemently denied by Torrey, application of same is fundamentally questionable where, as here, Plaintiffs have consciously refrained from serving Torrey, a named party defendant whose whereabouts were known to Plaintiffs.
Under all of the facts and circumstances of this case, the Court does not find that the interest of justice would be served in allowing service upon Torrey after the expiration of the statute of limitations. Plaintiffs could have clearly and easily chosen to have pursued Torrey, along with the Firm, but did not. That consideration is, in this Court's opinion, very compelling notwithstanding the Court's consideration of any lack of or mitigation of prejudice to Torrey given his knowledge of the pendency of and facts underlying the action.
Torrey has been held in Plaintiffs' crosshair for an extended period of time, without any affirmative action being taken. Under all of the circumstances herein present, the Court finds that the interest of justice weighs against Plaintiffs and in favor of Torrey who should, at this point, be afforded protection against defending the underlying claim of malpractice dating back to at least 2010 when the Court (Nicolai, J) granted Garrison leave to file a counterclaim against Philipstown in the Underlying Action which determination was reversed upon appeal for want of a an application by Garrison for leave to serve a late notice of claim in connection therewith (see Town of Philipstown v Garrison Contr., Inc., 85 AD3d 1014 [2d Dept 2011]). More than a reasonable period of time has passed after which a plaintiff of ordinary diligence would have served Torrey, a named and available defendant.
Based upon the foregoing, it is hereby
ORDERED, that, Plaintiffs' cross-motion for an extension of time to service Torrey is denied; and it is further,
ORDERED, that Torrey's motion to dismiss is granted.
All remaining parties are directed to appear before the Court at 9:30 AM on June 22, 2015, for a Status Conference.
The foregoing constitutes the Opinion, Decision, and Order of the Court. Dated: Carmel, New York
May 15, 2015
S/ __________
HON. LEWIS J. LUBELL, J.S.C.
Wesley Mead, Esq.
Robert S. Powers, Esq.
Attorneys for the Plaintiffs
1540 August Road
North Babylon, NY 11703
Michael G. Santangelo, Esq.
Attorney for Def. Medina, Torrey Mamo & Camacho, PC
47 Beekman Street, Suite 103
Sleepy Hollow, NY 10591
David S. Torrey, Esq.
Defendant, Pro Se
28 S. Main Street
Winsted, CT 06098