ARCPE LLC v. Yanira Salgado, appellant. (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Yanira Salgado appeals from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated April 18, 2025.  The order denied that defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her and granted the plaintiff's cross-motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon that defendant and pursuant to CPLR 308(5) to direct an alternative method for service of process.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendant Yanira Salgado pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her is granted, and the plaintiff's cross-motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon that defendant and pursuant to CPLR 308(5) to direct an alternative method for service of process is denied.

On October 31, 2024, the plaintiff commenced this action against, among others, the defendant Yanira Salgado to foreclose a mortgage on certain real property located in Bellmore.  A process server stated in an affidavit of service that he had served Salgado with process on November 21, 2024, by delivery of the summons and complaint to “Mrs. Salgado,” a person of suitable age and discretion, at the mortgaged premises, followed by first class mailing.

In January 2025, Salgado moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her on the ground of, inter alia, lack of personal jurisdiction based on improper service of process.  In support of her motion, Salgado submitted, among other things, evidence that she and her family members were out of the country on November 21, 2024, and a Ring doorbell camera video showing the process server speaking with Salgado through the Ring doorbell and leaving documents at the premises.  In February 2025, the plaintiff cross-moved pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon Salgado and pursuant to CPLR 308(5) to direct an alternative method for service of process.  In an order dated April 18, 2025, the Supreme Court denied Salgado's motion and granted the plaintiff's cross-motion.  Salgado appeals.

Pursuant to CPLR 306–b, a plaintiff is required to serve the summons and complaint within 120 days after commencement of the action.  If service of the summons and complaint is not made upon the defendant within that time, “the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (id.;  see Druss v. Scher, 237 AD3d 1046, 1047–1048).  To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Nationstar Mtge., LLC v. Balsamo, 246 AD3d 817, 819;  Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31).  Here, the plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effectuate proper service upon Salgado and, thus, failed to show good cause (see U.S. Bank N.A. v. Bindra, 217 AD3d 719, 719–720;  Marrano v. Holtsville Fire Dist., 210 AD3d 754, 756;  see also Kazimierski v. New York Univ., 18 AD3d 820, 820).

If good cause for an extension is not established, the court must consider the broader interest of justice standard of CPLR 306–b (see JPMorgan Chase Bank, N.A. v Malik, 238 AD3d 1014, 1016;  State of New York Mtge. Agency v Braun, 182 AD3d 63, 66).  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” (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106;  see OneWest Bank, FSB v. Singer, 237 AD3d 731, 733).  Here, the plaintiff did not establish that an extension was warranted in the interest of justice, since the plaintiff exhibited a lack of diligence and made no showing as to the expiration of the statute of limitations or the potentially meritorious nature of the cause of action against Salgado (see Duckett v. Stringer, 231 AD3d 1122, 1123;  Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 82 AD3d 980, 981).

CPLR 308(5) vests a court with discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are impracticable (see JPMorgan Chase Bank, N.A. v Kothary, 178 AD3d 791, 794;  Born To Build, LLC v. Saleh, 139 AD3d 654, 655).  A plaintiff seeking to effect expedient service must make some showing that the other prescribed methods of service could not be made (see JPMorgan Chase Bank, N.A. v Kothary, 178 AD3d at 794;  Corbo v. Stephens, 272 A.D.2d 502, 503).  Here, the plaintiff failed to make a showing that service on Salgado pursuant to CPLR 308(1), (2), and (4) was impracticable so as to permit service under CPLR 308(5) (see Alvarez v. Klein, 55 AD3d 643, 644).

Accordingly, the Supreme Court should have denied the plaintiff's cross-motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon Salgado and pursuant to CPLR 308(5) to direct an alternative method for service of process.

Since Salgado was not properly served, the Supreme Court should have granted Salgado's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction (see BAC Home Loans Servicing, L.P. v Rogener, 171 AD3d 996, 999;  Kazimierski v. New York Univ., 18 AD3d at 820).

Salgado's remaining contention need not be reached in light of our determination.

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.