Summary
granting the plaintiff leave to file proof of service after the expiration of the 20-day filing period in CPLR § 308
Summary of this case from Peterkin v. Fedex Freight, Inc.Opinion
June 3, 1996
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that the appeal of the plaintiff Uzma Paracha, an infant by her mother and natural guardian Nighat Paracha is dismissed as withdrawn, without costs or disbursements; and it is further,
Ordered that the cross appeal of the defendant Delroy G. Goldson is dismissed as abandoned, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court ( see, 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the order is reversed insofar as appealed from by Nighat Paracha, individually, on the law and as a matter of discretion, that branch of the motion which was to dismiss the action against that plaintiff as abandoned is denied, that plaintiff's complaint is reinstated, and the cross motion, treated as one for an extension of time to file proof of service of the summons, is granted, without costs or disbursements; and it is further,
Ordered that the plaintiff Nighat Paracha's time to file proof of service of the summons is extended until 20 days after service upon her of a copy of this decision and order, with notice of entry.
According to the affidavit of service, the respondent Delroy G. Goldson was served with process pursuant to CPLR 308 (2) on September 19, 1990. On that day, a copy of the summons was delivered to a person "of suitable age and discretion", and another copy was mailed to the respondent's "last known residence".
On October 21, 1992, the respondent moved to dismiss the action, alleging that he had defaulted in appearing as of October 19, 1990, and that the plaintiffs' failure to enter a default judgment within one year of that time warranted dismissal of the action against him ( see, CPLR 3215 [c]). The plaintiffs cross-moved for leave to file proof of service of the summons "nunc pro tunc". The Supreme Court granted the motion and denied the cross motion. We disagree.
Generally, actions which have been otherwise properly commenced by service ( cf., L 1992, ch 216 [commencement-by-filing]) "cannot thereafter be defeated simply by reason of a belated filing of proof of service" ( Lancaster v. Kindor, 98 A.D.2d 300, 306, affd 65 N.Y.2d 804). In such actions, a court may extend the period of time within which the proof of service ( see, CPLR 308) may be filed, in the absence of prejudice ( see, CPLR 2004; Weininger v. Sassower, 204 A.D.2d 715; Rosato v. Ricciardi, 174 A.D.2d 937). The plaintiff Nighat Paracha should therefore have been granted leave to file proof of service after the expiration of the 20-day filing period set forth in CPLR 308 (2).
The Supreme Court also erred in granting the respondent's motion to dismiss the complaint insofar as it is asserted against him pursuant to CPLR 3215 (c). Because the proof of service required by CPLR 308 (2) has yet to be filed, the respondent never defaulted in appearing ( see, Bank of N.Y. v. Schwab, 97 A.D.2d 450; Marazita v. Nelbach, 91 A.D.2d 604; Red Cheek Natl. Bank v. Star Ranch, 58 A.D.2d 983). Because the respondent never defaulted, the plaintiff Nighat Paracha could not have properly entered a default judgment (see, Rosado v. Ricciardi, supra). Therefore, the provisions of CPLR 3215 (c) do not apply. Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.