Stryker v Stelmak

Stryker v Stelmak 2010 NY Slip Op 00208 [69 AD3d 454] January 12, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Larry Stryker, Respondent-Appellant,
v
Alex Stelmak, Appellant-Respondent, and Stan Mashov, Respondent, et al., Defendants.

—[*1] Jonathan David Bachrach, New York, for appellant-respondent and respondent.

Karim H. Kamal, New York, for respondent-appellant.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.) entered December 5, 2007, which granted plaintiff's motion to extend time to serve a summons and complaint only for causes of action for abuse of process and malicious prosecution, and denied such permission regarding all other causes, unanimously affirmed, with costs.

We reject defendant Stelmak's argument that extension of the 120-day period to effect proper service of an already filed summons and complaint (CPLR 306-b) may be granted only if no service, as opposed to improper service, was made within that period (Murphy v Hoppenstein, 279 AD2d 410 [2001]; see also Earle v Valente, 302 AD2d 353, 354 [2003]). "Such 'extensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service,' regardless of the expiration of the Statute of Limitations after filing and before service" (Murphy, 279 AD2d at 410-411 [citation omitted]). Plaintiff's efforts to serve defendants were reasonably diligent. This state court action asserted essentially the same state law claims alleged in his federal action, and was timely commenced within six months after that action was dismissed due to lack of subject matter jurisdiction (CPLR 205 [a]; Jordan v Bates Adv. Holdings, 292 AD2d 205 [2002]). Defendants have not demonstrated any prejudice (see Griffin v Our Lady of Mercy Med. Ctr., 276 AD2d 391 [2000]).

Limiting the extension of time for service to the causes of action for malicious prosecution and abuse of process was not an abuse of the court's discretion. Plaintiff was collaterally estopped from contesting the absence of merit in his remaining causes (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]), as the time periods were previously determined by the federal court. Thus, such causes of action are barred by the applicable statutes of limitations. Plaintiff's theory that the limitations periods were tolled by operation of CPLR [*2]203 (e), raised for the first time on this appeal, is unpreserved for our review (see Sean M. v City of New York, 20 AD3d 146, 149-150 [2005]). Concur—Saxe, J.P., Catterson, Moskowitz, DeGrasse and Abdus-Salaam, JJ. [Prior Case History: 2007 NY Slip Op 33932(U).]