BUTTON v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION (2025)

DECISION AND ORDER

INTRODUCTION

Plaintiff Lezlie Button (“Plaintiff”) alleges that her employer, New York State Department of Transportation (“Defendant”), discriminated against her on the basis of her disability. (Dkt. 1). Before the Court is Defendant's motion to dismiss the complaint for insufficient service of process (Dkt. 7) and Plaintiff's motion seeking an extension of time to serve Defendant and to deem service performed on April 11, 2025, timely (Dkt. 9). For the reasons explained below, the Court denies Defendant's motion to dismiss and grants Plaintiff's motion.

BACKGROUND

Plaintiff filed her complaint on December 20, 2024, asserting discrimination claims under Title I of the Americans with Disabilities Act (“ADA”), section 504 of the Rehabilitation Act (“Rehabilitation Act”), and the New York State Human Rights Law (“NYSHRL”). (Dkt. 1 at ¶ 1). The summons and complaint were timely served on the New York State Attorney General. (Dkt. 3). Plaintiff also mailed the summons and complaint to Defendant's Commissioner, Marie Therese Dominguez (“Commissioner”), and General Counsel, Timothy Lennon (“General Counsel”). (Dkt. 4; Dkt. 5). The affidavits of service for the mailings to the Commissioner and General Counsel indicate that the mailed envelopes were marked “Personal and Confidential.” (Dkt. 4; Dkt. 5).

Defendant's counsel then notified Plaintiff's counsel by email dated February 25, 2025, that service of process on Defendant was insufficient because the envelope containing the summons and complaint sent to the Commissioner was not marked “URGENT LEGAL MAIL” and certified return receipt was not requested. (Dkt. 7-1 at 1, 31; Dkt. 11 at 2).¹ Several weeks later, Plaintiff's counsel mailed the summons and complaint addressed to “NYS Department of Health c/o Commissioner Dominguez.” (Dkt. 7-1 at 2, 33; Dkt. 11 at 3). This second mailing was also not marked “URGENT LEGAL MAIL” and was not sent by certified mail return receipt requested. (Dkt. 7-1 at 2, 33; Dkt. 11 at 3).

After the second mailing, Defendant filed the motion to dismiss on April 8, 2025, pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. (Dkt. 7). That same day, Plaintiff's counsel sent the summons and complaint to the Commissioner for a third time; this time in an envelope marked “URGENT LEGAL MAIL” and certified return receipt was requested. (Dkt. 9-3). The mail was delivered to Defendant on April 11, 2025. (Dkt. 9-2 at ¶ 2). Plaintiff then requested that the Court deem this third service of process timely, by filing a motion seeking that relief on April 11, 2025. (Dkt.9).

DISCUSSION

I. LEGAL STANDARDS

A. Rule 12(b)(5) Legal Standard

“A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint.” Jackson v. City of New York, No. 14-CV-5755 GBD KNF, 2015 WL 4470004, at *4 (S.D.N.Y. June 26, 2015) (quoting 5B Wright & Miller, Fed. Prac. & Proc. § 1353 (3d ed. 2004)). “In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). “[T]he plaintiff bears the burden of proving adequate service” on a Rule 12(b)(5) motion to dismiss. Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010) (quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). A court may consider matters outside the pleadings to assess the sufficiency of service on a Rule 12(b)(5) motion. Wilson v. Cuomo, No. CV214815(GRB)(AYS), 2022 WL 4644695, at *3 (E.D.N.Y. Aug. 28, 2022), report and recommendation adopted, 2022 WL 4662825 (E.D.N.Y. Sept. 30, 2022).

Pursuant to Rule 4, Plaintiff could effectuate service by any of the following means:

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.

Fed. R. Civ. P. 4(j)(2). New York's law for service on a state agency requires that service:

[S]hall be made by (1) delivering the summons to ․ the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to ․ the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section․ Service by certified mail shall not be effective unless the front of the envelope bears the legend “URGENT LEGAL MAIL” in capital letters.

N.Y. C.P.L.R. 307(2).

B. Standard for Extending Time for Service

Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id.

“[D]istrict courts have discretion to grant extensions even in the absence of good cause.” Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007). In determining whether a discretionary extension is appropriate, district courts consider four factors:

(1) whether any applicable statutes of limitations would bar the action once refiled; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether defendant attempted to conceal the defect in service; and (4) whether defendant would be prejudiced by extending plaintiff's time for service.

DeLuca, 695 F. Supp. 2d 54 at 66. “It is also appropriate to consider judicial efficiency in determining whether late service should be permitted.” Esposito v. City of New York, No. 13CV803MKBVMS, 2014 WL 12776119, at *2 (E.D.N.Y. Apr. 1, 2014).

II. ANALYSIS

There is no dispute that Plaintiff failed to complete service on her first two attempts. Plaintiff's first two attempts at serving the Commissioner by mail did not request return receipt and the envelopes did not contain the marking “URGENT LEGAL MAIL.” (Dkt. 7-1 at 1-2, 33). The statute is clear that service “shall not be effective” without that marking. See Moogan v. N.Y. State Dep't of Health, 8 A.D.3d 68, 69, 778 N.Y.S.2d 161 (1st Dep't 2004) (affirming dismissal against New York State Health Department “on the ground that petitioner had failed to include the legend ‘URGENT LEGAL MAIL’ on the certified mail envelope” sent to the defendant).

Plaintiff requests a retroactive 30-day extension of time to serve Defendant and asks the Court to consider service performed on April 11, 2025, as timely. (Dkt. 9). Plaintiff argues that dismissal for insufficient service would not serve the interests of any party or judicial efficiency. (Dkt. 9-1 at 4-5). Defendant argues in response that dismissal is warranted as the statute of limitations has not yet run on Plaintiff's claim, Defendant's counsel did not try to conceal the defects in service, and Defendant has been prejudiced by unnecessary motion practice. (Dkt. 10 at 2-4).

Plaintiff's 90-day deadline to serve Defendant was March 20, 2025 (see Dkt. 1), which she concedes she did not meet (see Dkt. 9-1 at 2). Plaintiff does not argue that she has good cause for this failure. But Plaintiff suggests that dismissing the action would, among other things, “elevate form over substance [and] reward procedural gamesmanship.” (Dkt. 11 at 1). Plaintiff criticizes Defendant for requiring “strict adherence to the CPLR mailing formality.” (Id. at 4).

The Court is not impressed by Plaintiff's counsel's inability to comply with basic procedural requirements needed to effectuate service. Nor does the Court find persuasive Plaintiff's counsel's attempt to deflect responsibility for these failures. (See, e.g., Dkt. 9-1 at 2 (attempting to shift blame to administrative staff); Dkt. 11 at 4 (criticizing Defendant for insisting on compliance with the rules)).

That said, failing to grant the requested extension could have dire consequences for Plaintiff (even though her counsel does not seem to recognize this). In particular, it is true that the statutes of limitations on Plaintiff's claims have not expired, but that does not mean that Plaintiff could still pursue all her claims if the case was dismissed. ADA, Rehabilitation Act, and NYSHRL claims are all subject to a three-year statute of limitations. See Purcell v. New York Inst. of Tech. - Coll. of Osteopathic Med., 931 F.3d 59, 65 (2d Cir. 2019) (holding that a three-year statute of limitations applied to the plaintiff's ADA claim); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (applying three-year statute of limitations to NYSHRL claims); Griffin v. Doe, 71 F. Supp. 3d 306, 312 (N.D.N.Y. 2014) (applying three-year statute of limitations to ADA and Rehabilitation Act claims). Plaintiff's alleged failure to accommodate and promote claims relate to events purportedly occurring in 2023 (Dkt. 1 at ¶¶ 50, 55, 57, 81-82, 86, 92, 97), and thus the statute of limitations would not run on those claims until 2026. But at least for the ADA claim, Plaintiff would face a hurdle if this case was dismissed because once the Equal Employment Opportunity Commission (“EEOC”) issues a right to sue letter, a plaintiff has 90 days from receipt of the letter to file an action. Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011). “In instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not ‘toll’ or suspend the 90-day limitations period.” Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993).

Plaintiff alleges that the right to sue letter was issued on September 29, 2024 (Dkt. 1 at ¶ 119), and thus the 90-day window closed on December 31, 2024.² As tolling for the 90-day period is unavailable, at least Plaintiff's ADA claim would be time-barred if the Court dismissed the case. Cf. Cohn v. KeySpan Corp., 713 F. Supp. 2d 143, 158 (E.D.N.Y. 2010) (“Unlike ADA claims, exhaustion of administrative remedies is not a condition precedent to commencing a discrimination claim based upon disability against a recipient of federal funding pursuant to Section 504 of the Rehabilitation Act.” (citing cases)). This favors granting Plaintiff's requested extension of time, notwithstanding her counsel's inexcusable failure to effectuate service even after being advised by defense counsel as to the missing steps. See, e.g., Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 599 (E.D.N.Y. 2013) (holding that the first factor weighed in the plaintiff's favor where dismissal for failure to serve would bar the plaintiff's claims because of the 90-day limitations period from the issuance of the EEOC right to sue letter).

This conclusion is buttressed by the fact that it is clear that Defendant's counsel had notice of the complaint as the New York State Attorney General's Office communicated with Plaintiff's counsel acknowledging receipt of the summons and complaint and informed Plaintiff of the deficiencies in service. (Dkt. 7-1 at 2, 31).

Defendant argues that it has been prejudiced by Plaintiff's failure to properly serve the summons and complaint because Defendant has had to endure otherwise unnecessary motion practice. (Dkt. 10 at 4). But any prejudice because of unnecessary motion practice does not impact whether Defendant would be prejudiced by extending Plaintiff's time for service. Indeed, permitting an extension of time is the more efficient option for the parties, as well as the Court, and Defendant does not object to the service of process conducted on April 11, 2025. The interest of judicial efficiency leans heavily in favor of granting Plaintiff's motion and denying Defendant's motion to dismiss. See Rosales v. Pepe's Rest Grp. LLC, No. 25-CV-1744 (LJL), 2025 WL 1898601, at *7 (S.D.N.Y. July 9, 2025) (noting that extending the time to serve defendants promoted judicial efficiency).

While Defendant's counsel did not attempt to hide the defect in service, and instead promptly notified Plaintiff's counsel of the error and gave clear instructions on how to effectuate proper service, (see id. at 31), and this favors Defendant, it is the only factor that does so.

Accordingly, the Court exercises its discretion and grants Plaintiff's motion for an extension of time to serve Defendant and deems the April 11, 2025, service timely.

CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss (Dkt. 7) is denied and Plaintiff's motion for an extension of time to serve Defendant (Dkt. 9) is granted. Plaintiff's April 11, 2025, service of process is hereby deemed timely. Plaintiff is required to file an affidavit of service of the summons and complaint on the docket.

SO ORDERED.

FOOTNOTES

1.   Defendant submitted an attorney declaration and attached exhibits as a single document on the electronic filing system. (See Dkt. 7-1). The Court therefore refers to the page numbers of the declaration, rather than the paragraph numbers.

2.   “There is a ․ presumption that a mailed document is received three days after its mailing.” Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011)

ELIZABETH A. WOLFORD, Chief Judge