Tychin v Howard Trans Inc.
Annotate this CaseDecided on October 29, 2007
Supreme Court, Kings County
Konstantin Tychin, Plaintiff,
against
Howard Trans Inc. and Quenten Behrens, Defendants.
4406/07
Francois A. Rivera, J.
By notice of motion filed on July 11, 2007, plaintiff Konstantin Tychin moves this court pursuant to CPLR 306-b for an order granting plaintiff an extension of time to serve the summons and complaint on defendants Howard Trans Inc. (hereinafter HTI)and Quenten Behrens (hereinafter Behrens) nunc pro tunc.
On February 6, 2007, plaintiff commenced the instant action by filing a summons and
verified complaint with the Kings County Clerk's office (KCC). The complaint alleges that on
December 20, 2005, at around 11:32 pm, the plaintiff was driving his 2005 Infinity automobile in
the vicinity of Avenue U and Pearson Street in Bronx County. At that time and place, Behrens
was operating a 1999 Ford motor vehicle, owned by HTI. Plaintiff alleges that Quenten operated
his vehicle in a negligent manner causing a collision with the plaintiff's vehicle and serious
physical injury to the plaintiff.
Motion Papers
Plaintiff's motion papers consist of an attorney's affirmation by Warren Zwirn, and a copy of
the summons and verified complaint. On September 21, 2007, plaintiff and Behren appeared for
oral argument. Neither defendant submitted opposition papers.
Undisputed Facts
This is an action to recover damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants. Originally, plaintiff retained attorney Anthony Fierro to pursue his personal injury claim in this matter. On February 6, 2007, Anthony Fiero, purchased the above referenced index number and filed a summons and verified complaint with the KCC.
Subsequently, the office of Zwirn & Salino, P.C. was retained by plaintiff to take the
over the case and the file from Anthony Fierro. Upon receipt of the file, incoming counsel
determined that the defendants were not served with the summons and complaint in this matter.
However, this discovery was made after the one hundred and twenty (120) day limitation period
set forth in [*2]CPLR 306-b had passed.
Law and Application
As originally enacted in 1992, CPLR §306-b transformed New York from a commencement-by-service to a commencement-by-filing jurisdiction (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 100 [2001]). Thus, in Supreme and County Court practice, the Legislature made payment of a filing fee and filing of the initiatory papers the acts that commence an action (Gershel v. Porr, 89 NY2d 327, 330 [1996]).
CPLR 306-b provides that with the exception of election law cases, the service of the summons and complaint shall be made within one hundred twenty days after the filing of the summons and complaint. If service is not made upon a defendant within the time provided in this section, 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, extent the time for service.
General Construction Law § 20 provides as follows: Day, computation.
A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. If such period is a period of two days, Saturday, Sunday or a public holiday must be excluded from the reckoning if it is an intervening day between the day from which the reckoning is made and the last day of the period. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.
The legislative history behind the amendment to CPLR 306-b makes clear that good cause and the interest of justice are to be treated as separate and distinct grounds for granting an extension of time to serve. In a legislative report prepared by the New York State Bar Association's Committee on Civil Practice Law and Rules, it was noted that since the term "good cause" does not include conduct usually characterized as law office failure,' proposed CPLR 306-b provides for an additional and broader standard, i.e. the interest of justice', to accommodate late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant." (See generally, Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).
The legislative history is unequivocal that the inspiration for the new CPLR 306-b provision was its Federal counterpart. The revision was intended to offer New York courts the "same type of flexibility" enjoyed by Federal courts under rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) similarly provides two alternative grounds for a plaintiff seeking an extension of time to serve process. The rule explicitly mandates that "if the plaintiff shows good cause for the failure, the court shall extend the time for service" (Fed Rules Civ. Pro., rule 4[m] ). The rule also authorizes a second, unspecified discretionary basis for extension "even if there is no good cause shown" (1993 Advisory Comm. Note, Fed. Rules Civ. Pro., rule 4[m]). (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]).
"Good cause is generally found only in exceptional circumstances where the plaintiffs [*3]failure to serve process in a timely manner was the result of circumstances beyond its control" (State of New York v Sella, 185 Misc 2d 549 [NY Sup. 2000]).
In the instant case, plaintiff submitted an affirmation from his attorney which explained that the delay in service resulted from the confusion surrounding the transfer of the plaintiff's file to a newly retained attorney. Since the plaintiff's failure to serve the defendants within the one hundred twenty days (120) day period is attributable to law office failure, an extension to serve cannot be granted based on the good cause ground.
Even if there is no good cause shown, a court may grant an extension under CPLR 306-b in the interest of justice (see, Busler v. Corbett, 259 AD2d 13 [4th Dept 1999]). "The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. 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 No one factor is determinative." (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95).
Applying the factors enumerated in the Leader case, supra, to the instant case, the court finds that the extension of time to serve process should be granted in the interest of justice. Although the Statute of Limitations has not yet expired and the plaintiff's claim will not be extinguished if his motion is not granted, the other factors weigh in the favor of allowing the extension of time to serve.
The complaint is verified by the plaintiff and avers an automobile accident in which the plaintiff was injured through Behren's negligent operation of HTI's vehicle. Pursuant to CPLR § 105 (u), verified pleadings "may be utilized as an affidavit whenever [an affidavit] is required" (Fortino v. Hersh, 307 AD2d 899 [1st Dept. 2003] and as such it demonstrates that the plaintiff has a meritorious claim. Second, the plaintiff's instant motion was filed promptly, only thirty (35) days after the passing of the (120) one hundred and twenty day deadline. Third, there was no opposition offered by the defendants who were duly served with the instant motion. The defendants, therefore, did not claim or demonstrate any prejudice to granting plaintiff's request. Prejudice involves impairment of defendant's ability to defend on the merits, rather than foregoing such a procedural or technical advantage (Busler v. Corbett, 259 AD2d 13, 16 [4th Dept. 1999]; citing National Union Fire Ins. Co. v Barney Assoc., 130 F.R.D. 291, 294 (S.D.NY 1990).
Accordingly, in the interest of justice and pursuant to CPLR 306-b, the plaintiff's motion for an order extending the time for service of the summons and complaint is granted. The court extends the time for service of the summons and complaint upon the defendants an additional ninety days.
The foregoing constitutes the decision and order of this court.
1;x
J.S.C.
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