Opinion
11869/03.
Decided November 13, 2006.
Upon the foregoing papers it is ordered that the defendant's application for dismissal and the imposition of motion costs, and the plaintiff's cross-motion for extension relief are determined as hereinafter articulated.
A review of the underlying litigative history may serve to place the applications sub judice in proper perspective.
The instant action is the second in a series of two (2) proceedings initiated to redress the asserted breach of a contract for the payment of commissions purportedly due the plaintiff, a realtor, upon the sale of the defendant's property in Upper Brookville, New York. It, like its predecessor, is premised on a written contract dated November 29, 1993. As gleaned from a review of the corresponding deed of even date, the sale that is asserted to have catalyzed the defendant's financial obligations thereunder occurred on May 6, 1994.
The initial action was commenced by the filing of process on June 3, 1994. Upon the defendant's failure to appear therein, a default judgment was entered against him in the sum of $243,605.50, inclusive of interest and taxable costs.
In response to ensuing enforcement efforts, the defendant sought vacatur of the judgment on jurisdictional grounds. During the pendency of that application, the parties entered into a stipulation dated February 8, 2000, which, in pertinent part, provided: "all applicable statutes of limitation are hereby tolled and extended until the termination of the Gap Period' (as said term is defined hereunder)." The "Gap Period" was defined therein as the twenty (20) day period following service of the Order adjudicating the defendant's jurisdictional challenge to the plaintiff's 1994 litigation.
The issues raised by the defendant therein necessitated a traverse (see, SFO 6/22/00 [Carter, J.]), and, after what has been characterized as a protracted hearing, the presiding Court Attorney-Referee found that in personam jurisdiction over the defendant had been obtained. The subject findings, memorialized in a report dated January 24, 2002, were thereafter confirmed by Order of the Hon. George R. Peck. (see, SFO 7/14/03) The defendant took and perfected an appeal therefrom.
Although it had prevailed at nisi prius, plaintiff, nonetheless, initiated its second action on August 1, 2003, two (2) days before the "Gap Period", as represented by plaintiff's counsel, was due to expire. At the time of its commencement, a summons with notice, in contradistinction to a summons and complaint, were filed with the Clerk of the Court. Notwithstanding the statutory mandate (see, CPLR 306-b), no efforts were then made to obtain in personam jurisdiction over the defendant.
By Order dated August 15, 2005, the Appellate Division, Second Department reversed the Court below, vacated the extant judgment, rejected the findings of the duly appointed Court Attorney-Referee and dismissed the subject action.
It is at this juncture that efforts were made to serve the defendant with process in the second action.
As gleaned from a perusal of the affidavit of service filed in connection therewith, process, consisting of a "summons with notice and verified complaint", were delivered to the defendant's wife on November 14, 2005. An additional copy thereof was transmitted to the defendant on the following day. The service situs for each aspect of service under CPLR 308 (2) was an address in Palm Coast, Florida.
The record before the Court, however, indicates that the complaint was not filed until December 8, 2005, the date of filing of the corresponding affidavit of service. Inexplicably, it appears that service of the complaint preceded its filing. (see, Della Villa v. Kwiatkowski, 293 AD2d 886 [3rd Dept.]; cf., Page v. Marusich, 30 AD3d 871, 873 [3rd Dept.])
Leaving this issue aside, as well as the residency issue raised by the defendant in challenging the efficacy of such service, plaintiff admittedly failed to make any effort to obtain in personam jurisdiction over the defendant within the statutory period.
CPLR 306-b, as amended (L. 2001, ch 473, eff. November 21, 2001), applies to the instant action initiated in August of 2003 and required the acquisition of in personam jurisdiction within 120 days of commencement. In pertinent part, the governing statute, also provided: "If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."
To obtain an extension under CPLR 306-b, a party must demonstrate either good cause for the default, or establish that a grant of such relief would promote the interests of justice. (see, Busler v. Corbett, 259 AD2d 13 [4th Dept.])
"The Legislative history makes clear that good cause' and interest of justice' are to be treated as separate and distinct grounds for granting an extension of time to serve. In a legislative report prepared by the New York State Bar Association's Committee on Civil Practice Law and Rules, which is included in the amended statute's bill jacket, it was noted that since the term "good cause" does not include conduct usually characterized as law office failure' * * * proposed CPLR 306-b provides for an additional and broader standard, i.e. the interest of justice', to accommodate late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant." (Leader v. Maroney, Ponzini Spencer, 276 AD2d 194, 197-198 [emphasis supplied], affd 97 NY2d 95)
"Good cause is generally found only in exceptional circumstances where the plaintiffs failure to serve process in a timely manner was the result of circumstances beyond its control. Eastern Refractories Company, Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505 (S.D.NY 1999)." (State of New York v. Sella, 185 Misc 2d 549, 553)
Since no steps were taken to effectuate service of process in the second action during the two (2) year period following its commencement, plaintiff's effort to obtain extension relief under the "good cause" standard fails. (see, Riccio v. Ghulam, 29 AD3d 558)
Plaintiff's argument to the effect that its service would have run afoul of the proscription precluding multiple actions based on the same transaction is not persuasive. Although an action remains inchoate until follow-up service is made (see, Matter of Gershel v. Porr, 89 NY2d 327, 331), its pendency is nonetheless tied to commencement, not the service of process.
Notably, dismissal, based on the pendency of a prior action, is not mandatory whether the issue is raised as an affirmative defense or it serves as the cornerstone of a corresponding motion. (see, CPLR 3211 [a] [4]; see also, IBJ Schroder Bank Trust Company v. Zaitz, 170 AD2d 579; Moreo v. Regan, 140 AD2d 313; Helfand v. Cohen, 110 AD2d 751)
The plaintiff's prayer for extension relief under the alternate statutory standard is similarly wanting.
"The interest of justice standard requires a careful judicial 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, 105)
"The interest of justice standard . . . permits the court to consider many factors, including the meritorious nature of the action, the expiration of the statute of limitations, the length of delay in service, plaintiff's diligence, promptness of plaintiff's request for an extension of time and prejudice to defendant (see Leader v. Maroney, Ponzini Spencer, supra at 105-106)." (Mead v. Singleman, 24 AD3d 1142, 1144 [3rd Dept.])
Application of the foregoing legal principles militates against extension relief under this savings provision. In this regard, the Court notes plaintiff's extreme lack of diligence in effectuating service of process, its protracted delay in seeking extension relief and its abject failure to demonstrate the underlying merit of its claim. (see, Colon v. Bailey, 26 AD3d 454, 456; City of Albany v. Wise, 298 AD2d 783, 784 [3rd Dept.]; see also, Meusa v. BMW Financial Services, ___ AD3d ___, 821 NYS2d 108 {32 AD3d 830})
The expiration of the governing limitations period (see, CPLR 213) more than two (2) years prior to the initiation of the second action is but another attenuating factor. Plaintiff's reliance on the terms of the parties' February 8, 2000 stipulation is misplaced, as it purported to extend the statute of limitations to an indefinite future date in violation of GOL § 17-103. (see, Bayridge Air Rights, Inc. v. Blitman Construction Corp., 80 NY2d 777)
In apparent recognition of its inability to qualify under either of the statutory standards available under the current version of CPLR 306-b, the plaintiff, through the office of reply papers, inappropriately changes its legal theory (see, Carolan v. Carolan, 26 AD3d 402; Discount Auto, 10 AD3d 395; Matter of Harleysville Insurance Company v. Rosario, 17 AD3d 677) and for the first time claims entitlement to the extension sought under the statutory scheme in effect at the time of the commencement of the initial action.
Consideration of its cross-motion under the version of CPLR 306-b applicable at that juncture affords plaintiff no succor. At the operative time, CPLR 306-b (b), in pertinent part, provided: "If an action dismissed for . . . failure to effect proper service was timely commenced, the plaintiff may commence a new action, despite the expiration of the statute of limitations after the commencement of the original action, upon the same transaction or occurrence or series of transactions or occurrences within one hundred twenty days of such dismissal provided that service upon the defendant is effected within such one hundred twenty day period." (emphasis added)
Inasmuch as CPLR 306-b (b) was in effect at the time the predecessor action was initiated, the plaintiff could have availed itself of its saving provision. (see, Bloomer v. Altman, 264 AD2d 795)
However, instead of filing anew upon the disposition of the subject appeal and dismissal of the first action, plaintiff elected to rely on its second action which it commenced two (2) years earlier and had impermissibly permitted to lie fallow.
Having eschewed the opportunity to recommence the action after dismissal of the first, it is limited to the savings provisions (i.e., good cause shown interest of justice) under CPLR 306-b, as amended, and may not harken back and reach the savings provision applicable under the former statutory scheme.
Based on the foregoing, the primary application is granted to the extent that the action is dismissed due to the plaintiff's failure to effectuate service of process within 120 days of the action's commencement. In all other respects the application-in-chief is denied. The cross-motion for extension relief is denied, as the plaintiff failed to establish either "good cause" for its default or demonstrate that the interests of justice would be thereby promoted.