Practice point: Where, as here, the statute of limitations expired between
the time that the action was commenced and the time that the copy of the
summons and complaint was served, that branch of the plaintiff's motion
which was pursuant to CPLR 306-b to extend the time to serve the
summons and complaint, nunc pro tunc, was granted in the interest of justice. The copy of the summons and complaint was served only 3 days
after the 120-day time period of CPLR 306-b had expired, the plaintiff
promptly sought relief after receiving the answer, and there was no
demonstrable prejudice to the defendant attributable to the delay in service.
Student note: Service of one copy of a summons and complaint upon an officer of a
corporation constitutes service upon the corporation itself as well as
upon the individual officer, where, as here, there was simultaneous
compliance with CPLR 311(a)(1) and CPLR 308(1).
Case: Fernandez v. Morales Bros. Realty, Inc., NY Slip Op 06345 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Respondeat superior.
