Opinion
16106/2003.
Decided September 26, 2007.
Savitt, Krantz Sellman, P.C., Attorneys for Plaintiff(s), Commack, New York.
Tartamella Tartamella Fresolone, Esqs., Hauppauge, New York.
Ciotti Damm, LLP, Mineola, New York.
ORDERED that this motion (# 001) by the plaintiffs for an order granting them an extension of time to serve the summons and complaint filed in this action to recover damages to the plaintiffs' residential real property and injunctive relief is considered under CPLR 306-b and decided as follows:
In or about June of 2003, the plaintiffs retained attorney, Laurence S. Jurman, Esq., of Melville, New York to commence this action against the defendants to recover damages purportedly suffered by the plaintiffs by reason of the defendants' negligent alteration of their real property by construction, inter alia, of a retaining wall and berm. Plaintiffs claim that said alterations caused water to accumulate and other adverse affects upon the plaintiff's adjacent premises.
On June 10, 2003, plaintiff Jeff Yahney, verified a complaint prepared by attorney Jurman wherein the plaintiffs demanded the recovery of money damages from the defendants and permanent injunctive relief. Court records reflect that said complaint, together with a summons, was filed with the clerk of this court on June 20, 2003, upon payment of the required filing fee and that Index # 16106/2003 was assigned to this action by said clerk. Plaintiffs expected that the defendants would be served with the summons and complaint and that the action would proceed in the normal course. However, this action remained dormant and without any judicial intervention as the same was not initialized by the filing of a Request for Judicial Information until the interposition of this ex parte application for relief pursuant to CPLR 306-b on September 20, 2007.
In support of the instant application, the plaintiffs assert that attorney Jurman repeatedly assured them that this action was proceeding in due course and that the summons and complaint had been answered by counsel retained by the defendants (see Exhibit C attached to plaintiffs' moving papers). Plaintiffs further allege that attorney Jurman furnished them with a copy of an answer dated August 15, 2003 which was purportedly interposed on behalf of the defendants by the law firm of Tartamella, Tartamella and Fresolone, Esqs., of Hauppauge, New York (see, Exhibit E). At a subsequent consultation with attorney Jurman in May of 2004, the plaintiffs were advised that attorney Jurman had prepared a motion to dismiss the answer purportedly served by the defendants due to their failure to appear for depositions and that said motion was conditionally granted by the court in July of 2005 and finally granted, unconditionally, on December 1, 2005 (see, Exhibits K and L).
Thereafter, attorney Jurman advised the plaintiffs that the defendants retained new counsel, namely, Ciotti and Damm, LLP, of Mineola New York, and that they had moved to vacate the defendants' previously adjudicated default (see, Exhibit M and N). In or about June of 2007, the plaintiffs were advised that the defendants' purported motion to vacate their default had been denied by order of the Honorable William B. Rebolini, J.S.C., dated May 4, 2007, a copy of which Jurman later supplied to the plaintiffs (Exhibit P). Jurman advised that he was preparing for the trial on the plaintiffs' damages which purportedly remained unscheduled by the court. Growing increasingly impatient at the slow progress of their case and suspicious of the representations of attorney Jurman with respect thereto, the plaintiffs contacted court personnel and the attorneys who purportedly appeared herein on behalf of the defendants and discovered that their summons and complaint had not been served upon the defendants; that this action had never been assigned to a Judicial Part; and that no motions were interposed herein nor orders issued by the court in this action. Plaintiffs fired attorney Jurman in July of 2007, filed a complaint with the State of New York Grievance Committee for the Tenth Judicial District on July 25, 2007 (Exhibit 4) and retained their present counsel to pursue the claims interposed in this action against the defendants.
By the instant motion, which was interposed on September 20, 2007 by the plaintiffs' present counsel upon the filing of a Request For Judicial Intervention as required by 22 NYCRR 202.06, the plaintiffs seek an order of this court extending their time to effect service of the summons and complaint filed herein with the Clerk of the Court on June 20, 2003. Plaintiffs contend that the application should be granted for good cause shown and/or in the interests of justice in light of the fraudulent acts and misrepresentations of their original counsel who failed to prosecute their claims in a manner consistent with the Judiciary Law and the Code of Professional Responsibility. In support of their motion, the plaintiffs submit proof in the form of an engineer's report to support the legal sufficiency of their claims against the defendants and offer the facts outlined above as a justifiable explanation for their failure to effect service within the 120 day time period imposed for service by the provisions of CPLR 306-b. The plaintiffs argue that these factors coupled with the expiration of the statute of limitations as to their claims to recover damages warrant the granting of the instant motion.
To obtain an extension under CPLR 306-b, the movant must demonstrate either a "good cause" reason for the failure to effect timely service or that the granting of such relief is warranted in the "interests of justice". While it has been established that a finding of good cause is generally precluded where no steps were taken to effect service and the good cause asserted by the movant is attributed to generalized claims of "law office failure", good cause is properly established in exceptional cases wherein the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond the plaintiff's control ( Leader v Maroney, Ponzini Spencer , 276 AD2d 194, 718 NYS2d 374, aff'd 97 NY2d 95, 736 NYS2d 291; Eastern Refractories Company, Inc. v Forty Eight Insulations, Inc ., 187 F.R.D. 503 [SDNY 1999]).
Without interviewing those who purportedly appeared for the defendants in this action and/or those who purportedly presided over the motions and/or proceedings purportedly undertaken by the plaintiffs' former counsel, Jurman, this court cannot verify the accuracy of all of the plaintiffs' factual assertions regarding the fraudulent and potentially criminal conduct of said counsel. However, it is abundantly clear from the record adduced on this application that although this action was commenced by filing on June 20, 2003, the court is without proof of service of the summons and complaint upon the defendants and that no answers were filed with the court by them or on their behalf. It is likewise clear from the record that no motions were filed herein nor orders issued by any Justice of this Court because no Request for Judicial Intervention was filed anytime prior to September 20, 2007, the date on which a Request for Judicial Intervention was filed by the plaintiffs present counsel in conjunction with the filing and submission of the instant moving papers. The establishment of these facts are sufficient to warrant a finding that this case is one those exceptional cases wherein the plaintiffs' failure to serve process was due to circumstances beyond their control and that their proffered explanation for their failure to effect service of the summons and complaint within the 120 day period prescribed by CPLR 306-b was sufficient to establish "good cause" under said statute.
The court further finds that the plaintiffs are equally entitled to an extension of time to serve the summons and complaint under the "interests of justice" provisions of CPLR 306-b. The interest of justice standard requires a careful analysis of the factual setting of the case and a balancing of the competing interests presented by the parties ( Leader v Maroney, Ponzini Spencer , 97 NY2d 95, 736 NYS2d 291, supra). Under said standard, the court may consider many factors including the meritorious nature of the action, the expiration of the statute of limitations, the length of the delay in service, the plaintiff's diligence, promptness of plaintiff's request for an extension of time and prejudice to the defendant ( Leader v Maroney, Ponzini Spencer , ibid @ 105-106).
Here, the plaintiffs have sufficiently established the meritorious nature of their claims, the expiration of the statute of limitations with respect to their negligence claims and the promptness of the plaintiffs' interposition of the instant motion for an extension of time after discovering the failure to timely effect service. While the court acknowledges the absence of diligence and the extended length of the delay of four (4) years in effecting service upon the defendants, both of these factors are attributable solely to egregious conduct on the part of the plaintiffs' former counsel, which this court will not impute to the plaintiffs. Under these circumstances, this court finds that the interests of justice would be served by the granting of the requested extension of time to effect service upon the defendants.
In view of the foregoing, the plaintiffs' motion (# 001) for relief pursuant to CPLR 306-b is granted and their time to effect service of the summons and complaint upon the defendants is hereby extended for a period of 120 days from the date of this order; and it is further
ORDERED that in view of the serious allegations of misconduct asserted herein against the plaintiffs' former counsel, Laurence S. Jurman, Esq., a/k/a Lawrence S. Jurman, and in discharge of the duties and obligations imposed upon this Court to report same to the appropriate governing bodies by the Code of Judicial Conduct and other relevant statutes, the undersigned hereby directs his appointed staff to forthwith forward a copy of this order and the papers upon which it is based to the State of New York Grievance Committee for the Tenth Judicial District, at 150 Motor Parkway, Suite 102, Hauppauge, New York 11788 and to the Office of the Suffolk County District Attorney at his office in the North County Complex, Building # 77, Veterans Memorial Highway, Hauppauge, New York 11788.