GONZALEZ v. COUNTRY MANOR APARTMENTS (2026)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered January 2, 2026, which granted defendants' motion to dismiss the amended complaint pursuant to CPLR 3211(a)(5) and denied plaintiff's cross-motion pursuant to CPLR 306–b for an order extending the time to serve the amended complaint and deeming service of the amended complaint as timely, nunc pro tunc, unanimously affirmed, without costs.

Defendants Country Manor DNB LLC and Country Manor River LLC, the owners of the property where plaintiff was allegedly injured, met their prima facie burden of establishing that plaintiff's time to sue them expired before he sought to join them as parties, as plaintiff alleges that the accident occurred on November 3, 2020, but sought to join them only in September 2024, well after expiration of the three-year limitations period (see CPLR 214[5];  Mandour v. Rafalsky, 238 AD3d 637, 637 [1st Dept 2025] ).  Plaintiff failed to raise an issue of fact, as he identifies no evidence that the original complaint, served on “Country Manor Apartments” (CMA) at the premises where the accident occurred several months after the owners sold it in December 2021, gave the owners “notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” (CPLR 203[f] ).  There is no evidence that the individual purportedly served on behalf of CMA in April 2022 was authorized by the owners to accept service of process (see CPLR 311–a[a][iii]–[iv] ).  Nor is there evidence that the owners received or knew about plaintiff's application for workers' compensation benefits which, while not identifying the property owner or state that the property is located in Webster, New York, does name “772 Country Manor” as the place of the injury.

Supreme Court also providently denied plaintiff's cross-motion to extend time for service.  An extension was not warranted for good cause, as plaintiff failed to use “reasonably diligent efforts” to serve the owners, or even to determine which entity or entities owned the premises at the time of the accident (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001];  Gillard v. Citigroup, 239 AD3d 409, 409 [1st Dept 2025] ).  Plaintiff did not demonstrate that his “ ‘failure to timely serve process is a result of circumstances beyond [his] control,’ ” given the denial in June 2023 of his motion for a default judgment against CMA based on his apparent lack of knowledge of the entity that owned the premises where he was injured, and his ensuing 13–month delay in seeking to identify the entities that actually owned the property from the Department of State (Henneberry v. Borstein, 91 AD3d 493, 496 [1st Dept 2012], quoting Bumpus v. New York City Tr. Auth., 66 AD3d 26, 32 [2d Dept 2009] ).  Indeed, information available online indicates that process could have been served on the Secretary of State and that the owners changed their address for receiving notice of such service in March 2022, before plaintiff purported to serve CMA in April 2022.  Plaintiff's “continued mistaken belief” that CMA simply defaulted even after his default judgment motion was denied is akin to law office failure, which cannot support a finding of good cause (see Leader, 97 NY2d at 105;  see also Jordan–Covert v. Petroleum Kings, LLC, 199 AD3d 666, 670 [2d Dept 2021] ).

Nor is plaintiff entitled to an extension in the interest of justice.  Whether such relief is available “requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” (Leader, 97 NY2d at 105).  Plaintiff correctly notes that an interest of justice extension may be granted where a “potentially meritorious” claim “may be lost due to the running of the statute of limitations” (Vogel v. Lorne, 237 AD3d 587, 587 [1st Dept 2025] ).  Nevertheless, we agree with Supreme Court that plaintiff's “extreme lack of diligence” is dispositive (Slate v. Schiavone Constr.  Co., 4 NY3d 816, 817 [2005] ).  The default judgment motion was denied, at the latest, almost five months before the limitations period expired.  Additionally, service was delayed for three years, as this action was commenced in March 2022, plaintiff sought leave to amend in September 2024, and the owners were only served in March 2025.  Further, plaintiff did not promptly request an extension of time to serve in June 2023, when he should have discovered service was possibly defective, instead cross-moving two years later in response to the owners' motion to dismiss.  Plaintiff did not explain why he delayed in ascertaining the owners' identities or moving to extend time for service (see Leader, 97 NY2d at 107).

Finally, in this case involving a three-year limitations period, “defendants had no notice of plaintiff['s] claims for nearly [four and a half] years after their accrual, leading to an inference of substantial prejudice” (Leader, 97 NY2d at 107).  “Because some factors weigh in favor of granting an interest of justice extension and some do not,” we decline to “disturb Supreme Court's discretion-laden determination” (Nunez–Ariza v. Nell, 161 AD3d 614, 614–615).

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