MORGAN v. MCLEOD (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated July 18, 2023.  The order denied the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants.

ORDERED that the order is affirmed, without costs or disbursements.

In January 2020, the plaintiff purchased real property located in Brooklyn from the defendant Cheryl McLeod.  The defendant Robert Johnson represented McLeod during the purchase transaction.  Prior to the purchase, the plaintiff and McLeod entered into an escrow agreement for the purpose of resolving certain violations relating to the property.

On January 18, 2023, the plaintiff commenced this action against McLeod and Johnson, among others, asserting, inter alia, causes of action to recover damages for breach of contract and fraud in connection with the purchase of the property.  On May 11, 2023, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants.  McLeod and Johnson opposed the motion.  By order dated July 18, 2023, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

“ ‘Pursuant to CPLR 306–b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice’ ” (Countrywide Home Loans, Inc. v. Lyons, 219 AD3d 1404, 1405–1406, quoting Wells Fargo Bank, N.A. v. Ciafone, 188 AD3d 957, 958).  “ ‘Good cause and interest of justice are two separate and independent statutory standards’ ” (id. at 1406, quoting Wells Fargo Bank, N.A. v. Ciafone, 188 AD3d at 958).  “ ‘Good cause requires a showing of reasonable diligence in attempting to effect service’ ” (id., quoting Emigrant Bank v. Estate of Robinson, 144 AD3d 1084, 1085).  “Under 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 [the] defendant’ ” (id., quoting Wells Fargo Bank, N.A. v. Boakye–Yiadom, 213 AD3d 976, 978).

Here, the plaintiff failed to demonstrate reasonable diligence in attempting service.  There is no evidence in the record that the plaintiff attempted to serve the summons and complaint on the defendants within 120 days after the commencement of the action (see CPLR 306–b).  In her affidavit in support of her motion, the plaintiff, in effect, acknowledged that she had not served the summons and complaint (see Butters v. Payne, 176 AD3d 1028, 1028).

Furthermore, the plaintiff failed to demonstrate that an extension of time to serve the defendants was warranted in the interest of justice in light of, inter alia, her failure to show diligent efforts to serve the defendants, the defendants' actual knowledge of the action within 120 days of commencement, or the existence of a potentially meritorious cause of action (see LaSalle Bank, NA v. Ferrari, 210 AD3d 976, 978).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendants.