Opinion
08-24-2016
Destiny RIVERA, et al., respondents, v. Jennifer RODRIGUEZ, appellant.
Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S. Biscone of counsel), for appellant. Law Offices of Ardito & Ardito, LLP, Franklin Square, NY (Mitchell L. Kaufman of counsel), for respondents.
Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S. Biscone of counsel), for appellant.
Law Offices of Ardito & Ardito, LLP, Franklin Square, NY (Mitchell L. Kaufman of counsel), for respondents.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated June 4, 2015, which granted that branch of the plaintiffs' cross motion which was pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon her.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' cross motion which was pursuant to CPLR 306–b to extend the time to serve the defendant with the summons and complaint in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). While the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the plaintiffs re-served the defendant within a reasonable time after learning that the timely service of process was being challenged by the defendant as defective, and the defendant had actual notice of the action within 120 days of its commencement (see Castillo v. JFK Medport, Inc., 116 A.D.3d 899, 900, 983 N.Y.S.2d 866 ; Selmani v. City of New York, 100 A.D.3d 861, 862, 954 N.Y.S.2d 580 ; Thompson v. City of New York, 89 A.D.3d 1011, 1012, 933 N.Y.S.2d 701 ; DiBuono v. Abbey, LLC, 71 A.D.3d 720, 895 N.Y.S.2d 726 ). Furthermore, after re-serving the defendant, the plaintiffs cross-moved within a reasonable time for an extension of time to serve the defendant, and there was no identifiable prejudice to the defendant attributable to the delay in service (see Castillo v. JFK Medport, Inc., 116 A.D.3d at 900, 983 N.Y.S.2d 866 ; Thompson v. City of New York, 89 A.D.3d at 1012, 933 N.Y.S.2d 701 ; DiBuono v. Abbey, LLC, 71 A.D.3d at 720, 895 N.Y.S.2d 726 ).