GALINDO v. The City of New York, Defendant. (2025)

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered August 11, 2023, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Conor Doherty and Ryan McHale to dismiss the complaint as against them and granted plaintiff's cross-motion for an extension of time to serve the summons and complaint under CPLR 306–b, unanimously affirmed, without costs.  Order, same court (Lisa S. Headley, J.), entered July 5, 2024, which denied defendants’ motion to renew and to dismiss the complaint and granted plaintiff's cross-motion for an additional extension of time to serve the summons and complaint under CPLR 306–b, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in extending plaintiff's time to serve the complaint in the interest of justice (CPLR 306–b).  Although plaintiff delayed in seeking an extension, other relevant factors, including his demonstration of an allegedly meritorious cause of action, weighed in favor of granting plaintiff's motion (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–06, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001];  Chase Home Fin., LLC v. Adago, 171 A.D.3d 533, 533, 95 N.Y.S.3d 817 [1st Dept. 2019]).  Defendants failed to show they were prejudiced by the extensions as the mere passage of time is insufficient to create prejudice (see Kaufman v. Bauer, 36 A.D.3d 481, 484, 830 N.Y.S.2d 23 [1st Dept. 2007]).  Furthermore, plaintiff's unsuccessful efforts to effect service on defendants did not amount to an extreme lack of diligence (cf.  Slate v. Schiavone Constr. Co., 4 N.Y.3d 816, 817, 796 N.Y.S.2d 573, 829 N.E.2d 665 [2005]).

In light of our determination, we need not address whether plaintiff satisfied the “good cause” prong of CPLR 306–b.