Opinion
2016-02057. Index No. 11062/14.
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.
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, and VALERIE BRATHWAITE NELSON, JJ.
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 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 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 A.D.3d 861, 862, 954 N.Y.S.2d 580 ; Samet v. Binson, 67 A.D.3d 988, 989, 891 N.Y.S.2d 93 ; Rosenzweig v. 600 N. St.,
LLC, 35 A.D.3d 705, 705–706, 826 N.Y.S.2d 680 ; Chiaro v. D'Angelo, 7 A.D.3d 746, 776 N.Y.S.2d 898 ). 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 A.D.3d 899, 900, 983 N.Y.S.2d 866 ; Selmani v. City of New York, 100 A.D.3d at 862, 954 N.Y.S.2d 580 ; Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 37, 883 N.Y.S.2d 99 ; de Vries v. Metropolitan Tr. Auth., 11 A.D.3d 312, 313, 783 N.Y.S.2d 540 ).