Singh v. Trahan

Full title: George P. Singh, et al., appellants, v. Michael Trahan, et al.…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Aug 30, 2017

2017 N.Y. Slip Op. 6395 (N.Y. App. Div. 2017)

Opinion

2016-02057

08-30-2017

George P. Singh, et al., appellants, v. Michael Trahan, et al., respondents.

Hersh Jakubowitz, Flushing, NY, for appellants. Russo & Tambasco, Melville, NY (Yamile Al-Sullami of counsel), for respondents.

RUTH C. BALKIN, J.P.

CHERYL E. CHAMBERS BETSY BARROS VALERIE BRATHWAITE NELSON, JJ. (Index No. 11062/14)

Hersh Jakubowitz, Flushing, NY, for appellants.

Russo & Tambasco, Melville, NY (Yamile Al-Sullami of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Mahon, J.), entered January 26, 2016, which denied their renewed motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendants.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiffs' renewed motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendants is granted.

The denial of the plaintiffs' renewed motion pursuant to CPLR 306-b to extend the time to serve the defendants with the summons and complaint was an improvident exercise of discretion (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106). While the action was timely commenced, the statute of limitations had expired when the plaintiffs first moved for relief, the timely service of process was subsequently found to have been defective, and the defendants had actual notice of the action within 120 days of commencement of the action (see Selmani v City of New York, 100 AD3d 861, 862; Samet v Binson, 67 AD3d 988, 989; Rosenzweig v 600 N. St., LLC, 35 AD3d 705, 705-706; Chiaro v D'Angelo, 7 AD3d 746). Furthermore, the plaintiffs demonstrated a potentially meritorious cause of action, and there was no prejudice to the defendants attributable to the delay in service (see Castillo v JFK Medport, Inc., 116 AD3d 899, 900; Selmani v City of New York, 100 AD3d at 862; Bumpus v New York City Tr. Auth., 66 AD3d 26, 37; de Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313).

BALKIN, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur. ENTER:

Aprilanne Agostino

Clerk of the Court