Opinion
11574 Index 27052/15E
05-28-2020
Jose FERNANDEZ, Plaintiff–Respondent, v. Kevin MCCARTHY, Esq., et al., Defendants–Appellants, Cohen & Siegel, LLP, Defendant.
McMahon & McCarthy, Bronx (Matthew J. McMahon of counsel), for appellants. The Perecman Firm, P.L.L.C., New York (Peter D. Rigelhaupt of counsel), for respondent.
McMahon & McCarthy, Bronx (Matthew J. McMahon of counsel), for appellants.
The Perecman Firm, P.L.L.C., New York (Peter D. Rigelhaupt of counsel), for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 24, 2019, which granted plaintiff's cross motion to extend the time to serve his complaint in the interests of justice and, in effect, denied defendants' motion to dismiss the complaint based on improper service, unanimously affirmed, without costs.
Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff's time in the interest of justice ( CPLR 306–b ), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104–105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ; Chase Home Fin. LLC v. Adago, 171 A.D.3d 533, 95 N.Y.S.3d 817 [1st Dept. 2019] ). Plaintiff's legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v. Laslop, 169 A.D.3d 550, 95 N.Y.S.3d 152 [1st Dept. 2019] ; Pennington v. Da Nico Rest., 123 A.D.3d 627, 1 N.Y.S.3d 26 [1st Dept. 2014] ).