Opinion
2003-08210.
Decided May 24, 2004.
In two related actions to recover damages for breach of a promissory note, the defendant appeals from an order of the Supreme Court, Suffolk County (Klein, J.), entered August 26, 2003, which denied his motion to dismiss Action No. 2 as time-barred, and granted the plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve the summons in Action No. 1.
Arnold Porter, LLP, New York, N.Y. (H. Peter Haveles of counsel), for appellant.
Johannesen Johannesen, LLP, Rocky Point, N.Y. (Richard Johannesen of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant's motion to dismiss Action No. 2, and substituting therefor a provision granting the motion, and dismissing Action No. 2; as so modified, the order is affirmed, without costs or disbursements.
Upon consideration of the relevant factors, the Supreme Court properly concluded that it would be in the interest of justice to grant the plaintiff an extension of time to effect service in Action No. 1 ( see CPLR 306-b; Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95). However, since it is undisputed that Action No. 2 was commenced after the expiration of the applicable statute of limitations, the Supreme Court should have granted the defendant's motion to dismiss that action as time-barred ( see Hafkin v. North Shore Univ. Hosp., 279 A.D.2d 86, 88, affd sub nom Leader v. Maroney, Ponzini Spencer, supra).
FLORIO, J.P., KRAUSMAN, COZIER and RIVERA, JJ., concur.