McIntyre v Chen

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McIntyre v Chen 2014 NY Slip Op 30320(U) January 31, 2014 Sup Ct, New York County Docket Number: 651127/2013 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/03/2014 1] INDEX NO. 651127/2013 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 02/03/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY CYNTHIA S. KERN PRESENT: PART _ __ J.S.C Justice I I I I i I Index Number: 651127/2013 MCINTYRE, JAMAAL GARY INDEX N O . - - - - - VS MOTION D A T E - - - - ·CHEN, DAVID MOTION SEQ. NO. _ __ Sequence Number : 001 EXTEND TIME \ .. .- The following papers, numl5ered1'7to-='"_--·=.-:_-,=w=e=re'°""re""""'a~dronthlfiffi>tmn o/for - - - - - - - - - - - - - Notice of Motion/Order to Show Cause Answering Affidavits - Affidavits - Exhibits Exhibits----------------- Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is w u i== C/) ., is decided in accordance with the annexed decision. :::> 0 l- o w a:: a:: w ~ w a:: .. >- !!?. z ..J ..J :::> 0 ~ C/) (.) < w I- a:: w z a:: w g, (.? ~ 0 w ..J C/) - < u ..J 0 I- C/) 0 ~ - :I: z w i== a:: 0 :E ~ 0 ---~-~...__<---___,J.S.C. CYNTHIA S. KERN 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: .... ¢.... ¢....... ¢..... ¢... MOTION IS: 3. CHECK IF APPROPRIATE: ..... ¢.. ¢. ¢..... ¢........... ¢..... ¢. ¢..... ¢... ¢. 0 CASE DISPOSED 0 GRANTED 0 0 SETILE ORDER 0DONOTPOST ~ J.S.C. ~ NON-FINAL DISPOSITION DENIED 0 0 GRANTED IN PART 0 OTHER SUBMIT ORDER LJ FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ------------------------------------------------------------------x J. GARY MCINTYRE and DAMON MCINTYRE, 651127/2013 -against- DECISION/ORDER DAVID CHEN, MICHAEL GIZA W, TROY AHW AH and CITRINE LOUNGE LLC (aka CITRINE LLC, d/b/a STUDIO XXI), Defendants. ------------------------------------------------------------------x HON. CYNTHIA KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: I Papers Notice of Motion and Affidavits Annexed.................................... Answering Affidavits and Cross Motion...................................... Replying Affidavits...................................................................... Exhibits...................................................................................... Numbered 1 2 3: 4' I Plaintiffs commenced the instant action against defendants alleging, inter alia, fraudulent inducement to enter into a contract, fraudulent misrepresentation, fraud by omission, negligent misrepresentation, breach of contract and unjust enrichment. Plaintiffs now move for an order authorizing a ninety day extension of time to serve the Summons and Verified Complaint on ' defendants David Chen ("Chen"), Troy Ahwah ("Ahwah") and Citrine Lounge LLC ("Citrine"). For the reasons set forth below, plaintiffs' motion is granted. The relevant facts are as follows. On or about March 28, 2013, plaintiffs commenced the ! instant action by filing a summons and verified complaint. Thereafter, plaintiffs then attorney I [* 3] utilized a non-professional process server, David Cepeda ("Cepeda"), all, alleged acquaintance known to all parties to attempt service upon defendants. On or about May 29, 2013, Cepeda I personally served defendant Michael Gizaw ("Gizaw"). However, as to Ithe remaining defendants, Cepeda allegedly attempted to personally serve Chen and Troy on three separate occasions as said defendants were attending events at various establishrrients but Chen and Ahwah, allegedly after seeing Cepeda upon leaving such events, retreated back inside the establishments and instructed security not to let Cepeda in. Thus, it is u~disputed that personal service was never effectuated on either Chen or Ahwah. However, according to the Affidavit of i Cepeda annexed to plaintiffs' moving papers, on or about May 30, 2013; Cepeda mailed the summons and verified complaint to Chen and Ahwah at their addresses listed on the summons. I On or about June 27, 2013, Gizaw and Ahwah submitted a joint answer to the underlying action. In or about August 2013, plaintiffs relieved their attorney ofrecord, Kevin Sten, and .,I ' retained the law firm of Zimmet Bieber, LLP ("Zimmet") to represent them in this action. After being retained, Zimmet reviewed plaintiffs' former attorney's file and discovered that Cepeda's . I I affidavits of service omitted certain information pertaining to the actual ~ervice of process and that proper service was never effectuated on Chen, Anwah or corporate defendant Citrine as I Gizaw was only served in his individual capacity. Thus, Zimmet contacted Mr. Robert Elan, attorney of record for Gizaw and Anwah to request that Gizaw and Ahwah accept service and that Gizaw further accept service on behalf of Citrine. Zimmet also inquired whether Chen had retained his services. In response, Mr. Elan allegedly stated that he did not represent Chen at the moment but it was possible that he may in the future. Additionally, by letter dated October 22, 1 2013, Mr. Elan wrote to Zimmet advising it that his office "has not been- given the authority to 2 [* 4] accept service of process on behalf of any or all named defendants." ·' Pursuant to CPLR § 306-b, service of the summons and complai~t must be made within I 120 days after the filing of such. However, a court may extend the time in which to effectuate service of process "upon good cause shown or in the interest of justice.": CPLR § 306-b. Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service. Leader V. Maroney, 97 N.Y.2d 95 (2001). The interest of justice standard, on the other hand, "is intended to be an additional and broader standard to accommodate late service that might be due to mistake, confusion or oversight." Wideman v. Barbel Trucking, 300 A.D.2d 184, 185 (1 51 Dept 2002) (internal quotation marks and emphasis omitted). Whether to grant an extension is left to the discretion of the court, which 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 plaintiffs request for the extension of time,~and prejudice to I defendant." Leader, 97 N.Y.2d at 105-106. In the present action, the court finds that plaintiffs have shown g<?od cause and it is in the interest of justice that plaintiffs' time to effectuate service be extended. ,While plaintiffs failed to ' effectuate proper service on defendants Chen, Ahwah and Citrine within the required time-frame, ¢. 1 .I it is undisputed that the person hired by plaintiffs' former attorney made serval attempts to timely serve said defendants but such attempts were averted by Chen and Ahwah. The court finds that these facts are sufficient to demonstrate that plaintiffs made reasonably ~iligent efforts to make timely service. Additionally, plaintiffs' new attorney, upon discovering Fhe lack of proper service, diligently and timely attempted to remedy the error by contactin~ Mr. Elan and by 3 [* 5] making the instant motion. Moreover, defendants have failed to demonstrate any prejudice in granting the extension. Accordingly, plaintiffs' motion is granted and it is hereby ORDERED that plaintiffs are granted an extension of ninety days from the date of this order to effectuate service of the summons and complaint on defendants David Chen, Troy Ahwah and Citrine Lounge LLC. This constitutes the decision and order of the court. Dated: .; \\~I\ Ii Enter: _ _ _ __,\..__·,°Y-_-........._ _ _ _ _ __ _ J.S.C. 4

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