McCalman v Oluwasola

[*1] McCalman v Oluwasola 2012 NY Slip Op 51130(U) Decided on June 20, 2012 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 20, 2012
Supreme Court, Kings County

Theodore McCalman, Plaintiff,

against

Joseph Oluwasola, OLOCADE OLAYEMIFADIPE, DIANA KISTO, and HORACE KING, Defendants.



28378/11



Counsel for plaintiff

Bryan Barenbaum, Esq.

Law Offices of Bryan Barenbaum, P.C.

2060 Eastern Parkway

Brooklyn, New York 11207

718-421-1111

Francois A. Rivera, J.

By ex-parte application filed on June 15, 2012, plaintiff moves this court pursuant to CPLR 306—b for an order granting an extension of time to serve the summons and complaint on defendant Diana Kisto.

On December 20, 2011, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCC). Plaintiff's complaint alleges, among other things, that he was injured while a passenger in a vehicle owned by Diana Kisto and operated by Horace King, when the King vehicle collided with a vehicle owned by Joseph Oluwasola and operated by Olocade Olayemifadipe in the vicinity of Loring Avenue and Fountain Avenue in Kings county. Plaintiff further alleges that he sustained serious injuries due to the negligent operation of the vehicles by the two drivers.

MOTION PAPERS

Plaintiff's motion papers consist of a proposed order, an attorney's affirmation in support, a copy of the summons and verified complaint and a copy of a Arizona State Department of Motor vehicle search.

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As originally enacted in 1992, CPLR § 306—b transformed New York from a commencement-by-service to a commencement-by-filing jurisdiction (Leader v. [*2]Maroney, Ponzini & Spencer,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 "not[ed] 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." (Leader, 97 NY2d 95, 104-105 [2001] citing Bill Jacket, L 1997, ch 476, at 14).

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' (Leader, 97 NY2d 95, 105 [2001] citing 1993 Advisory Comm. Note, Fed. Rules Civ. Pro., rule 4[m]).

"Good cause is generally found only in exceptional circumstances where the [*3]plaintiff's 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] ).

This is an action to recover damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants. On December 20, 2011, plaintiff filed a summons and complaint. The affirmation of plaintiff's counsel establishes that service was not made on defendant Diana Kisto as of the date of the instant application. The affirmation is unclear on whether any attempts at service were made before the instant application. Also unclear is the date counsel discovered that service was not timely. 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, 97 NY2d 95, 105-106 ).

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.

Although the complaint is verified by plaintiff's counsel and may not serve as an affidavit pursuant to CPLR § 105(u) and there is no affidavit from the plaintiff this is but one factor to be considered. The plaintiff's instant application was filed promptly, less than sixty (60) days after the passing of the one hundred and twenty day (120) deadline.[FN1] The court can see no prejudice to the defendant by granting the 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 [*4]defendants an additional ninety days (90).

The foregoing constitutes the decision and order of this court.

Enter_________________________x

J.S.C.

Enter forthwith_________________________x

J.S.C.

. Footnotes

Footnote 1: Fifty seven days had elapsed.