WELLS FARGO BANK v. FIGUEROA

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

WELLS FARGO BANK, N.A., Appellant, v. Samuel FIGUEROA, Respondent, et al., Defendants.

2016–11303

Decided: April 10, 2019

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ. Hinshaw & Culbertson LLP, New York, N.Y. (Matthew C. Ferlazzo and Schuyler B. Kraus of counsel), for appellant. E. Waters & Associates, P.C., Jamaica, N.Y. (Edward J. Waters of counsel), for respondent.

DECISION & ORDER

ORDERED that the orders are affirmed, with one bill of costs.

In March 2008, the plaintiff commenced this action to foreclose a mortgage given by the defendant Samuel Figueroa (hereinafter the defendant) encumbering certain property located in Freeport.  Following the defendant's failure to appear or answer the complaint, the Supreme Court issued an order of reference.  On November 19, 2008, the court entered a judgment of foreclosure and sale.

In February 2015, the plaintiff scheduled a foreclosure sale of the property.  Thereafter, the defendant moved to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.  On December 14, 2015, the Supreme Court, after a hearing to determine the validity of service of process, granted the defendant's motion to dismiss the complaint insofar as asserted against him.  The court also granted an oral motion made by the plaintiff at the hearing for leave to serve a new summons and complaint.

In March 2016, the plaintiff moved pursuant to CPLR 306–b for an extension of time to serve the defendant with the summons and complaint.  By order entered July 27, 2016, the Supreme Court denied the motion, holding that the plaintiff failed to make a showing of good cause or that the relief sought would serve the interests of justice.  On September 22, 2016, the plaintiff personally served the defendant with the summons and complaint.  Thereafter, the plaintiff moved to deem service of the summons and complaint on the defendant timely, nunc pro tunc.  By order entered February 1, 2017, the court denied the 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 for good cause shown or in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  Emigrant Bank v. Estate of Robinson, 144 A.D.3d 1084, 1085, 44 N.Y.S.3d 48;  Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31, 883 N.Y.S.2d 99).  “Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service” (Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99 [citations omitted] ).  “If good cause for an extension is not established, courts must consider the ‘interest of justice’ standard of CPLR 306–b” (id.).  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 defendant” (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018;  see A.K. v. T.K., 150 A.D.3d 1091, 1093, 56 N.Y.S.3d 168;  Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99).

Here, the plaintiff, which did not present evidence of reasonably diligent efforts to serve the defendant prior to moving in March 2016, failed to establish good cause (see A.K. v. T.K., 150 A.D.3d at 1093, 56 N.Y.S.3d 168;  Brown v. Sanders, 142 A.D.3d 940, 941, 37 N.Y.S.3d 444).  Additionally, under the circumstances of this case, the plaintiff failed to demonstrate that an extension of time was warranted in the interest of justice (see Brown v. Sanders, 142 A.D.3d at 941, 37 N.Y.S.3d 444;  Navarrete v. Metro PCS, 137 A.D.3d 1230, 27 N.Y.S.3d 397;  see also Komanicky v. Contractor, 146 A.D.3d 1042, 43 N.Y.S.3d 761;  cf. US Bank N.A. v. Saintus, 153 A.D.3d 1380, 61 N.Y.S.3d 315;  Emigrant Bank v. Estate of Robinson, 144 A.D.3d at 1085, 44 N.Y.S.3d 48).  Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiff's motions pursuant to CPLR 306–b.

DILLON, J.P., CHAMBERS, MILLER and DUFFY, JJ., concur.

Copied to clipboard