Opinion
2003-09396.
Decided June 21, 2004.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Connell, J.), dated August 25, 2003, which denied their motion, in effect, to extend their time to serve the summons and complaint and granted the defendant's cross motion to dismiss the complaint pursuant to CPLR 306-b.
Feraru Ajlouny, P.C., Garden City, N.Y. (Neil Flynn of counsel), for appellants.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Brian W. McElhenny of counsel; Stephen J. Romano on the brief), for respondent.
Before: FRED T. SANTUCCI, J.P., HOWARD MILLER, DANIEL F. LUCIANO, STEPHEN G. CRANE, ROBERT A. SPOLZINO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, and the cross motion is denied, the service effectuated on the defendant on March 29, 2003, is deemed to have been timely made, filing of proof thereof to April 1, 2003, is granted nunc pro tunc, and the defendant's time to serve and file an answer is enlarged until 30 days after service upon him of a copy of this decision and order.
As the delay in service of the summons and complaint was minimal and the defendant failed to demonstrate that any prejudice resulted therefrom, the plaintiffs' motion should have been granted ( see Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95).
SANTUCCI, J.P., H. MILLER, LUCIANO, CRANE and SPOLZINO, JJ., concur.