ARDEL CONSTRUCTION DESIGN GROUP INC v. VBG 990 AOA LLC (2024)

Order, Supreme Court, New York County (Robert Reed, J.), entered on or about January 4, 2023, which denied plaintiff's motion for an extension of time to serve the summons and complaint on surety defendant Atlantic Specialty Insurance Company, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff's motion for an extension of time to serve Atlantic with the summons and complaint should have been granted because plaintiff established the existence of several relevant factors weighing in favor of the extension (CPLR 306–b;  see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001]).  The eight-month delay in service that would have resulted from the grant of the extension was not so protracted to allow for an inference that Atlantic suffered prejudice from the delay (see Gjurashaj v. ABM Indus. Groups, LLC, 213 A.D.3d 479, 181 N.Y.S.3d 890 [1st Dept. 2023]).  Moreover, although there is no record evidence that Atlantic was given actual or constructive notice of the claim, plaintiff aptly notes that any claim of prejudice is undercut by the fact that Atlantic, who posted a bond for the release of the mechanic's lien, knew there was a high likelihood of litigation involving it as defendant VBG's surety and had ample opportunity to investigate the claim (see Fernandez v. McCarthy, 183 A.D.3d 539, 540, 122 N.Y.S.3d 895 [1st Dept. 2020];  Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445, 446, 949 N.Y.S.2d 684 [1st Dept. 2012]).  The record further establishes the potential merits of the lien foreclosure claim, and because the statute of limitations has expired, the denial of the extension would bar plaintiff from litigating the otherwise timely filed claim against Atlantic (see id.;  Pennington v. Da Nico Rest., 123 A.D.3d 627, 627–628, 1 N.Y.S.3d 26 [1st Dept. 2014]).