Opinion
Index No. 515953/2020
03-28-2022
Ada WOOTEN, Plaintiff, v. DIRA REALTY, LLC and West Sterling 131 LLC, Defendants.
Attorney for Plaintiff, Glenn R. Meyers, The Meyers law Firm, 30 Vesey Street, 4th Floor, New York, New York 10007.
Attorney for Plaintiff, Glenn R. Meyers, The Meyers law Firm, 30 Vesey Street, 4th Floor, New York, New York 10007.
By notice of motion filed on December 8, 2021, under motion sequence number one, the plaintiff Ada Wooten seeks an order pursuant to CPLR 306-b extending plaintiff's time to effectuate service of the summons and complaint upon defendants Dira Realty, LLC and West Sterling 131 LLC.
BACKGROUND
On August 27, 2020, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter KCCO). The verified complaint contains the following salient allegations of fact. On August 28, 2017, at approximately 10:45 a.m., the plaintiff was lawfully present in apartment 2J at 131 E 21st Street, Brooklyn, New York (hereinafter the premise) when she slipped or tripped and fell (hereinafter the accident) due to a dangerous condition on the premise. The fall caused her to sustain serious physical injury. The defendants own, operate, manage, and control the premise. The accident was caused by the defendants’ negligent ownership, operation, management, and control of the premises.
MOTION PAPERS
The plaintiff's motion papers consist of a notice of motion, an affirmation in support, and three annexed exhibits labeled A through C. Exhibit A is described as a redacted copy of plaintiff's hospital report for the medical treatment caused by the accident. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C contains copies of two affidavit of service of the commencement papers on each of the defendants. They both reflect personal delivery upon each of the defendants on December 8, 2021, by personal delivery to the to the New York State Secretary of State.
LAW AND APPLICATION
Generally, service of a summons and complaint must be made within 120 days after the commencement of the action ( JPMorgan Chase Bank, N.A. v Kothary , 178 AD3d 791, 792 [2nd Dept 2019], citing CPLR 306-b ). CPLR 306-b provides, in relevant part, that "[s]ervice of the summons and complaint ... shall be made within one hundred twenty days after the commencement of the action." CPLR 306-b further provides that, "[i]f 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" ( Chase Home Fin., LLC v Berger , 185 AD3d 1000 [2nd Dept 2020] ).
A court may, in the exercise of its discretion, extend a plaintiff's time to serve a complaint upon good cause shown or in the interest of justice ( CPLR 306-b ; State of New York Mtge. Agency v Braun , 182 AD3d 63, 66 [2nd Dept 2020] ; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001] ; Bumpus v New York City Tr. Auth., 66 AD3d 26, 31-32 [2nd Dept 2009] ). Good cause and interest of justice are two separate and independent statutory standards ( Bumpus , 66 AD3d at 31 ). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service ( BAC Home Loans Servicing, L.P. v Herbst , 180 AD3d 980, 981 [2nd Dept 2020], quoting Bumpus , 66 AD3d at 31 ).
"Good cause will not exist where a plaintiff fails to make any effort at service ... or fails to make at least a reasonably diligent effort at service. By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control" ( Poyser v JCF Trucking Corp. , 184 AD3d 886, 887 [2nd Dept 2020], quoting Bumpus , 66 AD3d at 31-32 ).
In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant ( Leader, 97 NY2d at 105-106 ).
On August 27, 2020, the plaintiff commenced the instant action by filing the commencement papers with the KCCO. In accordance with CPLR 306-b, the plaintiff had 120 days from that date, that is until December 26, 2020, to serve the commencement papers on the defendants. Due to the plaintiff's admitted lack of due diligence, the plaintiff made no attempt to serve the commencement papers on the defendants before the deadline elapsed. Inasmuch as the plaintiff did not exercise reasonably diligent efforts in attempting to effect proper service, plaintiff has not met the good cause standard for granting an extension ( Jordan-Covert v Petroleum Kings, LLC , 199 AD3d 666 [2nd Dept 2021] ).
The instant action was for damages for personal injury allegedly sustained on August 28, 2017. Ordinarily, the statute of limitations for such an action is three years such that the deadline for commencing the action would have been August 28, 2020. The Governor's Executive Order in response to the Covid-19 pandemic, however, operated as a toll of the statute of limitations from the period of March 20 to November 3, 2020, a total of 228 days. Under these circumstances, the statute of limitations would be extended in this case to about April 13, 2021.
In August of 2020, the plaintiff commenced the instant action. In December of 2021, the plaintiff made the instant motion and served the commencement papers on each of the defendants, more than seven months after the statute of limitations had expired and more than sixteen months after commencing the instant action. Here, the plaintiff failed to establish his entitlement to an extension of time for service in the interest of justice given the lack of diligence in effecting service; the more than sixteen-month delay between the time the summons and complaint were filed and the time the plaintiff made the instant motion for an extension; and the lack of an excuse, other than law office failure, for the failure to effect timely service ( Jordan-Covert , 199 AD3d 666 citing Rodriguez v Consolidated Edison Co. of NY, Inc., 163 AD3d 734 at 736 [2nd Dept 2018] ).
CONCLUSION
The motion by the plaintiff for an order pursuant to CPLR 306-b extending plaintiff's time to effectuate service of the summons and complaint upon defendants Dira Realty, LLC and West Sterling 131 LLC is denied.
The foregoing constitutes the decision and order of this Court.