GILLARD v. CITIGROUP (2025)

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered June 30, 2023, which, to the extent appealed from as limited by the brief, denied plaintiff's motion for an extension of time to effect service on defendant U.S. Life pursuant to CPLR 306–b, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying plaintiff's motion for additional time to serve U.S. Life with the summons and complaint.  Plaintiff failed to satisfy the criteria for an extension of time to serve either upon good cause shown or in the interest of justice (see CPLR 306–b;  Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 103–104, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001]).  As to good cause, plaintiff failed to demonstrate reasonable diligence in attempting to timely serve U.S. Life (see Matter of Jordan v. City of New York, 38 A.D.3d 336, 339, 833 N.Y.S.2d 8 [1st Dept. 2007];  see also Leader, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  Plaintiff made a single attempt to serve U.S. Life at an apparently incorrect address and “made insufficient efforts to locate the correct address” thereafter (Esposito v. Isaac, 68 A.D.3d 483, 483, 888 N.Y.S.2d 889 [1st Dept. 2009]).  Further, plaintiff did not timely move for an extension before the 120–day period expired (see CPLR 306–b), and it appears that at the time plaintiff filed the instant appeal U.S. Life “had still not been served ․ [or] put on notice of plaintiff's claims against [it]” (Rodriguez v. Saal, 43 A.D.3d 272, 276, 841 N.Y.S.2d 232 [1st Dept. 2007];  see also Pecker Iron Works, Inc. v. Namasco Corp., 37 A.D.3d 367, 368, 830 N.Y.S.2d 548 [1st Dept. 2007]).

Nor was an extension warranted in the interest of justice (see Leader, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  Plaintiff did not establish that her cause of action against U.S. Life was potentially meritorious (see Gjurashaj v. ABM Indus. Groups, LLC, 213 A.D.3d 479, 480, 181 N.Y.S.3d 890 [1st Dept. 2023]) and did not rebut the inference of substantial prejudice, given the protracted delay in service at this point (see Nationstar Mtge. LLC v. McCallum, 191 A.D.3d 480, 481, 142 N.Y.S.3d 156 [1st Dept. 2021]).  Furthermore, there is no evidence that U.S. Life had notice of the action at any time before the statutory period for effecting service had expired (see Nationstar, 191 A.D.3d at 481, 142 N.Y.S.3d 156;  Esposito, 68 A.D.3d at 484, 888 N.Y.S.2d 889;  Rodriguez, 43 A.D.3d at 276, 841 N.Y.S.2d 232).

We have considered plaintiff's remaining contentions and find them unavailing.