CHAN v. ZOUBAREV (2018)

DECISION & ORDER

Appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated January 8, 2016.  The order denied the defendant's motion pursuant to CPLR 3211(a)(8) and 306–b to dismiss the complaint for lack of personal jurisdiction and granted the plaintiff's cross motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendant.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant to recover damages for personal injuries.  The defendant moved pursuant to CPLR 3211(a)(8) and 306–b to dismiss the complaint for lack of personal jurisdiction, and the plaintiff cross-moved pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendant.  The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion.  The defendant appeals.

The defendant correctly contends that the plaintiff's purported service of the summons and complaint upon him pursuant to CPLR 308(4) was defective, as the defendant submitted unrebutted evidence that the place where service was attempted and where the summons and complaint were affixed was not his dwelling place or usual place of abode at the relevant time (see Commissioners of State Ins. Fund v Khondoker, 55 AD3d 525, 526, 865 N.Y.S.2d 287;  In Ja Kim v. Dong Hee Han, 37 A.D.3d 662, 830 N.Y.S.2d 345;  Venerri v. Gallo, 23 A.D.3d 376, 805 N.Y.S.2d 555).

Nevertheless, the Supreme Court providently exercised its discretion in denying the defendant's motion to dismiss the complaint and granting the plaintiff's cross motion to extend the time to serve the summons and complaint upon the defendant.  Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306–b).  If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” (id.).  “An extension of time for service is a matter within the court's discretion” (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101, 736 N.Y.S.2d 291, 761 N.E.2d 1018).  Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action (see Singh v. Trahan, 153 A.D.3d 961, 60 N.Y.S.3d 425;  Selmani v. City of New York, 100 A.D.3d 861, 862, 954 N.Y.S.2d 580;  Dhuler v. ELRAC, Inc., 118 A.D.3d 937, 939, 988 N.Y.S.2d 680).  Moreover, there was no prejudice to the defendant attributable to the delay in service (see Singh v. Trahan, 153 A.D.3d at 961, 60 N.Y.S.3d 425;  Selmani v. City of New York, 100 A.D.3d at 862, 954 N.Y.S.2d 580;  Dhuler v. ELRAC, Inc., 118 A.D.3d at 939, 988 N.Y.S.2d 680).

HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.