SMITH v. ARCE (2010)

Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered June 17, 2009, which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion for leave to enter a default judgment against defendant Rizzo–Espinoza and to extend the time to serve defendant Arce, unanimously reversed, on the facts, without costs, defendants' motion denied and plaintiff's cross motion granted.

 Plaintiff demonstrated sufficient cause for her delay in moving for a default judgment against Rizzo–Espinoza and a meritorious cause of action (see CPLR 3215[c] ).  The delay in moving resulted from law office failure in the aftermath of the sudden death of one of the children of a partner in the firm.   The verified complaint and medical records show that, as a result of the accident, one of plaintiff's cervical vertebrae was fractured and she suffered severe post-traumatic migraines for which she still receives treatment.

 Plaintiff demonstrated that it is in the interest of justice to extend the time for service of the summons and complaint upon defendant Arce (see CPLR 306–b;  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 most significant factor in the failure to timely serve him is the misleading, if not wholly inaccurate, information Arce gave to the police at the scene of the accident, a factor beyond plaintiff's control.   The process server stated in an affidavit that when he was unable to locate Arce at the address Arce had given, he spoke to tenants and neighbors of the building, checked with the post office to verify the apartment number, searched telephone directories and internet services, and called and spoke to many individuals with the surname Arce, all of which was unavailing.   In addition, plaintiff has shown a meritorious cause of action, the statute of limitations has expired, and Arce has not demonstrated that there would be any prejudice to him as a result of the extension of time.