Opinion
8460 Index 653468/15
02-21-2019
WIMBLEDON FINANCING MASTER FUND, LTD., Plaintiff–Respondent, v. Keith LASLOP, Defendant–Appellant, Weston Capital Management LLC, et al., Defendants.
Kudman Trachten Aloe LLP, New York (Paul H. Aloe of counsel), for appellant. Kaplan Rice LLP, New York (Daniel D. Edelman of counsel), for respondent.
Kudman Trachten Aloe LLP, New York (Paul H. Aloe of counsel), for appellant.
Kaplan Rice LLP, New York (Daniel D. Edelman of counsel), for respondent.
Renwick, J.P., Tom, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered September 15, 2017, which, to the extent appealed from, granted plaintiff an extension of time to serve defendant Keith Laslop in the interest of justice and deemed him served by e-filing as of the date of entry of the court's decision in the NYSCEF e-filing system, unanimously affirmed, with costs.
The court did not abuse its discretion in granting plaintiff an extension of time to serve appellant with process in the interest of justice ( CPLR 306–b ). Plaintiff established the existence of several relevant factors weighing in favor of an extension ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104–105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ).
The claims asserted against Laslop seem to be potentially meritorious ( Solano v. Mendez, 114 A.D.3d 614, 980 N.Y.S.2d 764 [1st Dept. 2014] ). Indeed, this Court has previously recognized the potential merits of the fraud allegations in the amended complaint against other Gerova directors involved in the alleged fraudulent scheme ( Wimbledon Fin. Master Fund, Ltd. v. Weston Capital Mgt. LLC, 160 A.D.3d 596, 597, 76 N.Y.S.3d 121 [1st Dept. 2018] ; Wimbledon Fin. Master Fund, Ltd. v. Weston Capital Mgt. LLC, 150 A.D.3d 427, 55 N.Y.S.3d 1 [1st Dept. 2017] ).
Laslop has not established that he would suffer prejudice from the extension, since he has had actual notice of this action and the allegations against him from early on ( Deutsche Bank, AG v. Vik, 149 A.D.3d 600, 50 N.Y.S.3d 291 [1st Dept. 2017] ). He hired counsel in Canada and the U.S. to challenge service and oppose plaintiff's motion for a default judgment, and his counsel also represents other officers and directors of Gerova. Conversely, plaintiff, which diligently attempted service on Laslop multiple times within the statutory period, would suffer prejudice without an interest of justice extension, because the statute of limitations has expired ( Hernandez v. Abdul–Salaam, 93 A.D.3d 522, 939 N.Y.S.2d 861 [1st Dept. 2012] ; Woods v. M.B.D. Community Hous. Corp., 90 A.D.3d 430, 431, 933 N.Y.S.2d 669 [1st Dept. 2011] ).
Under the circumstances, the motion court was not precluded from granting plaintiff's application for this second CPLR 306–b extension asserted in its brief in opposition to Laslop's cross motion to dismiss the amended complaint for nonservice, rather than in a formal notice of cross motion. To conclude otherwise would limit the court's discretion in granting relief in the interest of justice (see Fried v. Jacob Holding, Inc., 110 A.D.3d 56, 65, 970 N.Y.S.2d 260 [2d Dept. 2013] ).
Alternative service on Laslop by the Court System's NYSCEF e-filing system was appropriate. Plaintiff established that statutory methods of service were impracticable ( CPLR 308[5] ). Moreover, since Laslop's counsel received notices of filings in this action through NYSCEF, service by that alternative method comported with due process by being reasonably calculated to apprise Laslop of the pendency of the action ( Matter of Harner v. County of Tioga, 5 N.Y.3d 136, 140, 800 N.Y.S.2d 112, 833 N.E.2d 255 [2005] ; see Kozel v. Kozel, 161 A.D.3d 700, 78 N.Y.S.3d 68 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1089, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018] [service by email]; Alfred E. Mann Living Trust v. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 141–142, 910 N.Y.S.2d 418 [1st Dept. 2010] [service by email]; Baidoo v. Blood–Dzraku, 48 Misc.3d 309, 5 N.Y.S.3d 709 [Sup. Ct., N.Y. County 2015] [service by Facebook] ).
We have considered the parties' remaining contentions and find them unavailing.