NUNEZ ARIZA v. Marie Peterson, et al., Defendants. (2018)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 24, 2017, which granted plaintiff's cross motion pursuant to CPLR 306–b to extend the time to serve defendant Brian J. Nell (defendant), and granted defendant's motion to dismiss the complaint unless plaintiff property serves him within 60 days, unanimously affirmed, without costs.

Where plaintiff attempted to serve defendant pursuant to Vehicle and Traffic Law § 253, but the notice of service upon the Secretary of State along with a copy of the summons and complaint that he mailed to defendant's out-of-state address was returned as undeliverable, service was never effectuated (Vehicle and Traffic Law § 253;  Meza v. Proud Tr., Inc., 55 A.D.3d 332, 866 N.Y.S.2d 100 [1st Dept. 2008] ).  However, where, as here, service is not timely made, the court may, within its discretion, extend the time for service upon either good cause or in the interest of justice (CPLR 306–b;  Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ).  In applying the interest of justice standard, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant” (Leader, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  “No one factor is determinative” (id. at 106, 736 N.Y.S.2d 291, 761 N.E.2d 1018).

Here, defendant's insurer was on notice of the claim within months of the happening of the accident and plaintiff demonstrated a potentially meritorious action.  “Because some factors weigh in favor of granting an interest of justice extension and some do not, we should not disturb Supreme Court's discretion-laden determination” (Sutter v. Reyes, 60 A.D.3d 448, 449, 874 N.Y.S.2d 120 [1st Dept. 2009];  see Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445, 949 N.Y.S.2d 684 [1st Dept. 2012];  Woods v. M.B.D. Community Hous. Corp., 90 A.D.3d 430, 933 N.Y.S.2d 669 [1st Dept. 2011] ).