Plaintiff's purported service of the summons and complaint pursuant to CPLR 308(4) was defective, as defendant submitted
unrebutted evidence that the place where service was attempted and where
the summons and complaint were affixed was not his dwelling place or
usual place of abode. Still, dismissal was denied and plaintiff's cross-motion to extend the time to serve was granted. Service of a summons and
complaint must be made within 120 days after the commencement of the
action, pursuant to CPLR 306-b). If service is not timely made, the court, upon motion, must dismiss the action without
prejudice, or, upon good cause shown or in the interest of justice,
extend the time for service. Here, while the action was timely commenced, the
statute of limitations had expired when plaintiff cross-moved for
relief, the timely service of process was subsequently found to have
been defective, and the defendant had actual notice of the action within
120 days of commencement of the action. In addition, there was no prejudice to defendant attributable to the delay in service.
Case: Chan v. Zoubarev, NY Slip Op 00402 (2d Dep't January 24, 2018)
Here is the decision.
