Tower Ins. Co. of N.Y. v Dudkiewicz
Annotate this CaseDecided on December 29, 2014
Civil Court of the City of New York, New York County
Tower Insurance Company of New York a/s/o MAUREEN MANGIARDI, Plaintiff,
against
Michael Dudkiewicz, Defendant.
31478/12
For Plaintiff:
The Law Offices of Smith Carroad Levy & Wan P.C. by Pragna Parikh and Timothy Wan.
For Defendant:
Joelson & Rochkind, Eqs. By Kenneth Joelson.
David B. Cohen, J.
On December 3, 2012, plaintiff filed the summons and complaint in this action.Plaintiff alleged that due to a fire in defendant's apartment, which was caused by defendant's negligence, plaintiff's assignee suffered property damage. The summons and complaint was not served for 16 months, until April 3, 2014, when it was finally served on defendant personally at his place of business. On May 5, 2014, defendant moved to dismiss this action pursuant to CPLR 306-b, claiming untimely service of the summons and complaint. On May 20, 2014, plaintiff cross-moved for an order that, for good cause shown, the Affidavit of Service be deemed timely filed nunc pro tunc.
In support of its cross-motion, defendant submitted an attorney affirmation setting forth defendant's alleged attempts at service on defendant over 16 months, at several addresses, including failed attempts at two residential addresses in Manhattan, one residential address in Florida, one place of business in Florida [FN1] and one place of business in Manhattan. The attorney affirmation does not state that it is made on personal knowledge and is devoid of any details regarding the dates and times when service was allegedly attempted. Nor does the affirmation provide any explanation for plaintiff's belief that defendant lived or worked at any of the addresses at which they sought to serve him. Plaintiff did not present any documentary evidence in admissible form, tending to support its basis for the belief that defendant lived out of state at any of the addresses where counsel claims plaintiff attempted service of process. Plaintiff also failed to attach an affidavit from an investigator [*2]in support of its claim that it was necessary to attempt service at these various addresses, nor did it submit an affidavit from its process server demonstrating the efforts made to effect service of the summons and complaint on the defendant.
Defendant's motion is granted and plaintiff's cross-motion is denied. Defendant was served well after the required 120 day limit (see CPLR 306-b). When service is not timely, the court, upon motion, shall dismiss the action without prejudice as to that defendant, unless for good cause or in the interest of justice, an extension of the time for service is warranted (id.).
Although defendant failed to move pursuant to CPLR 306-b for an extension, the Court has considered whether plaintiff's affirmation in support of the cross-motion shows good cause or whether an extension of time should be granted in the interest of justice. A "good cause" extension requires a showing of reasonable diligence in attempting to effect service upon a defendant (Henneberry v. Borstein, 91 AD3d 493 [1st Dept 2012]). Good cause is likely to be found where "the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control" (Bumpus v. New York City Tr. Auth., 66 AD3d 26 [1st Dept 2009]). To meet the "interest of justice" standard, the court must make "a careful judicial analysis of the factual setting of the case and a balancing of the competing interests," including the "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 NY2d 95 [2001]).
For the reasons stated above, plaintiff has failed to demonstrate reasonable diligence in attempting to serve defendant in a timely manner or that the extensive delay until service resulted from circumstances beyond plaintiff's control. Thus, there is no good cause warranting an extension of the time to serve. Further, plaintiff has also failed to demonstrate that an extension is warranted in the interest of justice. The only factor which supports an extension in the interest of justice is that dismissal would result in a new action being barred by the applicable statute of limitations. Plaintiff has not claimed the existence of a meritorious cause of action, the time for service had expired for nearly a year when service was effectuated, and the delay in service was excessive (plaintiff also never moved for an extension of time to serve). On balance, the Court overwhelmingly finds that the interests of justice do not warrant an extension (Melise v. Albert Einstein College of Medicine, et al., 2014 WL 1265275 [NY Sup Ct 2014 McKeon, J.]). As such, had plaintiff moved for an extension for time to serve the summons and complaint, such motion would have been denied.
Accordingly, as plaintiff has failed to timely serve defendant, this matter is dismissed and defendant's cross-motion is denied as moot.
This constitutes the decision and order of this Court.
Dated: December 29, 2014
New York, New York
________________________
Hon. David B. Cohen, J.C.C. Footnotes
Footnote 1:Defendant disputes that he ever lived out of state and alleges that he has continuously lived and been employed in New York State.
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