After the plaintiff admitted that its original affidavit of service was erroneous and failed to produce its process server when the parties appeared for a hearing to determine the validity of service of process, the Supreme Court denied the plaintiff's motion and granted the defendant's motion to dismiss. The Appellate Division affirmed.
CPLR 306-b provides, in pertinent part, that "[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action." The statute 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."
An extension of time for service is a matter within the trial court's discretion. In applying the statutory interest of justice standard, which is distinct from the good cause standard, the court must consider the facts and balance the parties' competing interests. The court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including the Statute of Limitations, the potentially meritorious nature of the cause of action, the length of the delay in service, the promptness of the plaintiff's request to extend time, and prejudice to the defendant.
Here, the plaintiff's delay of nearly five years between obtaining a default judgment of foreclosure and sale against the defendant and its attempt to enforce that judgment, during which time the statute of limitations expired, weighed against extending the time to serve the defendant with the summons and complaint by approximately nine years. In addition, the court found that the plaintiff was seeking statutory relief in order to avoid the consequences of its inability to produce its process server on the scheduled date of the hearing.
Chase Home Fin., LLC v. Berger, NY Slip Op 04289 (2d Dep't July 29, 2020)
