VOGEL v. LORNE (2025)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered June 5, 2024, which, to the extent appealed from as limited by the briefs, granted the motion of plaintiffs Heike M. Vogel, Esq. and Victoria V. Bach, Esq., as former partners of Vogel Bach & Horn, LLC, to extend the time to serve the summons and complaint by 120 days and denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The court providently exercised its discretion in granting plaintiffs’ motion to the extent of extending time to effect service in the interest of justice and denying defendant's motion to dismiss the complaint (see CPLR 306–b;  Gjurashaj v. ABM Indus. Groups, LLC, 213 A.D.3d 479, 480, 181 N.Y.S.3d 890 [1st Dept. 2023]).  Plaintiffs’ claim appears to be potentially meritorious, and, without the extension of time, it may be lost due to the running of the statute of limitations (see Fernandez v. McCarthy, 183 A.D.3d 539, 540, 122 N.Y.S.3d 895 [1st Dept. 2020]).  Conversely, defendant's assertion of prejudice is unavailing (see Galindo v. Doherty, 234 A.D.3d 571, 571, 224 N.Y.S.3d 408 [1st Dept. 2025]), and her due process arguments are unconvincing given the nature of the inquiry at the traverse hearing (see Jia Wang v. Zhao, 151 A.D.3d 538, 538, 58 N.Y.S.3d 14 [1st Dept. 2017]).

We reject plaintiffs’ arguments that this appeal should be dismissed.  The issues raised by defendant's appeal from the order's resolution of motion sequence 002 are inextricably intertwined with motion sequence 001 (see Castellon v. Reinsberg, 82 A.D.3d 635, 636, 920 N.Y.S.2d 62 [1st Dept. 2011]), and the denial of defendant's motion to dismiss is appealable as of right (CPLR 5701[a][2][v];  see Simmons v. New York City Health & Hosps. Corp., 71 A.D.3d 410, 411, 894 N.Y.S.2d 750 [1st Dept. 2010], lv denied 16 N.Y.3d 709, 2011 WL 1161735 [2011]).

Moreover, plaintiffs’ request for sanctions is unavailing.  While defendant's arguments are unsuccessful, her conduct was not frivolous within the meaning of 22 NYCRR 130–1.1(c).

We have considered and rejected plaintiffs’ remaining claims.