CITIBANK v. GRUNBERGER (2026)

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendant Chaim Grunberger appeals from an order of the Supreme Court, Rockland County (David Fried, J.), dated July 22, 2024.  The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against him 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.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On June 15, 2023, the plaintiff commenced this action against, among others, the defendant Chaim Grunberger (hereinafter the defendant), inter alia, to foreclose a mortgage encumbering certain real property located in Monsey.  On December 6, 2023, the defendant was personally served with process.

In February 2024, the defendant moved, inter alia, pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against him, asserting that the plaintiff had failed to serve the summons and complaint upon him within 120 days of commencement of the action.  Thereafter, the plaintiff cross-moved pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendant.  In an order dated July 22, 2024, the Supreme Court, among other things, denied that branch of the defendant's motion and granted the plaintiff's cross-motion.  The defendant appeals.

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see id.;  U.S. Bank N.A. v Bindra, 217 AD3d 719, 719).  However, “[p]ursuant to CPLR 306–b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice” (Bhatara v Kolaj, 222 AD3d 926, 930 [internal quotation marks omitted];  see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104).  “The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant” (Bank of N.Y. v Hernandez, 243 AD3d 854, 855 [internal quotation marks omitted] ).  “In considering 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. at 855–856 [internal quotation marks omitted] ).  The determination of whether to grant an extension of time in the interest of justice is within the discretion of the motion court (see Maza v J & N Dev., LLC, 241 AD3d 537, 538).

Here, the Supreme Court providently exercised its discretion in granting, in the interest of justice, the plaintiff's cross-motion pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendant and properly denied that branch of the defendant's motion which was pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against him.  While the action was timely commenced, the statute of limitations has since expired (see Deutsche Bank Natl. Trust Co. v Bandalos, 173 AD3d 1136, 1138).  Further, the length of the delay was not “particularly egregious” (U.S. Bank N.A. v Bindra, 217 AD3d at 721), and the plaintiff demonstrated that there was no identifiable prejudice to the defendant attributable to the delay in proper service (see Kerin v Iammatteo, 245 AD3d 920, 921) and that it has a potentially meritorious action (see Wells Fargo Bank, N.A. v Ben–Aron, 231 AD3d 1194, 1196).

The defendant's remaining contentions are without merit.

BARROS, J.P., CHAMBERS, LOVE and MCCORMACK, JJ., concur.