Toribio v Rahmania Props., LLC.

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Toribio v Rahmania Props., LLC. 2017 NY Slip Op 32784(U) December 21, 2017 Supreme Court, Queens County Docket Number: 709140/16 Judge: Carmen R. Velasquez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 01/10/2018 04:05 PM 1] NYSCEF DOC. NO. 61 INDEX NO. 709140/2016 RECEIVED NYSCEF: 01/10/2018 SHORT FORM ORDER NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE CARMEN R . VE LASQUEZ Justi c e ------------------------------------x J UAN TORIBIO , Pl aintiff , I AS PART 38 Index No . 709 1 40/16 M t ion o Da t e: Septemb er 1 8 , 20 1 7 -againstRAHMANIA PROPERTIES , LLC ., GRAMEEN NOBEL REALTY, LLC , ET AL. , De fe ndants. ------------------------------------x FILED JAN 10 2018 C:OUNT'r Cl.l?R.K QUEENS COUNTY The following papers numbered EF 2 8-5 8 ~ea d on thi s mot i on b y defendant Mohammed A. Rahman s/h /a M ohamme d M. Rahman a/k / a an o rder d ismissing t he comp lai nt on the Mohammed A. Rahman for _ ground of lack of jurisdiction; and cr o ss mot i o n b y t he p l a int i f f for an order .amending the caption and permi t ting h im to effectuate late service of the s ummon s and c omp la in t . PAPERS NUMBERED Notice of Motion - Affidavi t s - Exhi b i t s ...... Notice of Cross Motion - Affidav its - Exhibit s Affirmati on in Opposition - Ex hib i ts .. .. .. . ... Replying Affirmation ........... . ............ . .. .. . EF EF EF EF 28 42 50 55 - 40 49 54 58 Upon the f o regoing papers i t is o rdere d tha t thi s mot i on b y defendant M hammed A. Rahman s /h/ a M amme d M. Rahman a/ k /a o oh M hammed A. Rahman for an o rder dismissing t h e compla int a nd o cross motion by the plaintiff for an o rder pe r mitt i ng him to effectuate late service of the s ummon s and comp la int and amend the capti on are decided as fol l ows : The instant personal injur y a c ti on was commenced by filing a summons and complaint on August 4 , 2 0 1 6 . Defe n d ant Mohammed A . Rahman now moves to dismiss the a cti on on the g rou nd tha t the summons and complaint were not s e rve d upo n h im . Pl a inti f f cro s s moves for leave to extend his time t o effect uat e s e r v i ce of the summons and complaint upon the s a id defendant a nd als o to amend the c apti o n . 1 of 4 [*FILED: QUEENS COUNTY CLERK 01/10/2018 04:05 PM 2] NYSCEF DOC. NO. 61 INDEX NO. 709140/2016 RECEIVED NYSCEF: 01/10/2018 One affidavit of service herein alleges that the summons and complaint were served upon defendant Mohammed M. Rahman a /k/a Mohammed A. Rahman on August 24, 2016 at 40-32 74th Street, c/o Global Medical Care, Elmhurst, N.Y. The affidavit of service states that the summons and complaint were delivered to Krishna Kahn, a co-worker, as a person of suitable age a nd discretion . The affidavit further states that a copy of the summons and complaint were mailed to the defendant at the above address. Furthermore, an additional affidavit of service states that the summons and complaint were served upon the defendant a t 64 Princeton Street, Roslyn Heights, N.Y. by delivering a copy to "Jane Rahman", Relative, a person of suitable age and di scretion . The affidavit further states that a copy of the summons and complaint were mailed to the defendant at the Roslyn Heights address. In support of the motion, defendant Mohammed A. Rahman denies that service of process was ever effectuat ed upon him as set forth in the affidavits of service. He avers that he never had any involvement with the premises located at 40 - 32 7 4th Street in Elmhurst. Rather, he explains that his brother, Mohammed M. Rahman, is a physician with an o ffice located a t the said address. He further avers that he never autho rized his brother to accept the delivery of legal papers on his behalf nor did he designate his brother to be his agent for the purpose of receiving legal papers. In addition, defendant Mohammed A . Rahman avers that he never resided at 64 Princeton Street i n Roslyn Heights, New York. He explains that hi s brother resi d es at that address. Moreover, defendant states tha t n o one who resided at the Roslyn Heights address was ever a ut horized to accept legal papers on his behalf. CPLR 306-b requires that service of process be made upon t h e defendant within 120 days after the action was commenced . (Burwell v Yonkers Gen. Hosp., 6 AD3d 478, 480 [2d Dept 2004] . ) The statute further provides that the time for s uch service c an be extended "upon good cause shown or in the interest of justice." (see Garcia v Simonovsky, 62 AD3d 655, 656 [2 d Dept 2009] ; Robles v Mirzakhmedov, 34 AD3d 554, 554 [:2d Dept 20 06 ] . ) "Good cause" requires a threshold showing that the plaintiff has made reasonably diligent efforts at service, whi l e the "intere st o f justice" standard provides a more flexib l e gr ou nd for the exercise o f the court's discretion. (L eader v Maroney, Ponzini & Spencer , 97 NY2d 95, 104 [2001]. ) Indeed, " [t] h1= interest of justice standard requires a careful judicial ana lysis of t he factual setting of the case and a balancing of the competing interests presented by the parties." ( Leader v Maroney, Ponzini 6< Spencer, 97 NY2d at 105; Agudo v Zhinin, 9 4 AD3d 68 0, 681 [ 2d 2 2 of 4 [*FILED: QUEENS COUNTY CLERK 01/10/2018 04:05 PM 3] NYSCEF DOC. NO. 61 INDEX NO. 709140/2016 RECEIVED NYSCEF: 01/10/2018 Dept 2012] . ) Here , it appears that Mohammed M. Rahman and Mohammed A. Rahman are two different people , and that defendant Mohammed A. Rahman was neither named in the caption properly nor served wit h process . Thus, plaintiff seeks to amend the caption and requests additional time to serve Mohammed A. Rahman. The court finds that the plaintiff establis h ed that the interest of justice requires an extension of time t o effectuate service of process . If the time for service is not extended, this case as against Mohammed A. Rahman will be barred by the Statute of Limitat i ons . (see DiBuono v Abbey, LLC, 7 1 AD3d 72 0 , 720 [2d Dept 2010] . ) Indeed , the subject persona l injury incident occurred on February 14 , 2014 . In addi t i on , plaintiff has submitted an affidavit of merit and has also shown that t he defendants will not be prejudiced by the extensi o n o f time. ( US Bank N . A . v Saintus , 153 AD3d 1380 [2d Dept 2017] ; Abu-Aqlein v El Jamal , 44 AD3d 884 , 885 [2d Dept 2007] . ) Accordingly , this motion by defendant Moharruned A. Rahman s/h/a Mohammed M. Rahman a/k/a Mohammed A. Rahma n f o r an order dismissing the complaint is denied. The branch of the cross motion to amend the caption is granted , and " Mohammed A. Rahman " is substitut ed as defendant i n the place and stead of defendant "Mohammed M. Rahma n a/k/a Mohammed A. Rahman ." The caption shall now read as follows : SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------x JUAN TORIBIO , Index No . 70 9140/16 Plaintiff , - againstRAHMANIA PROPERTIES, LLC ., GRAMEEN NOBEL REALTY , LLC , MOHAMMED A. RAHMAN and APOLLO MEDICAL DIAGNOSTIC SERVICES , PLLC . Defendants . ------------------------------------x 3 3 of 4 [*FILED: QUEENS COUNTY CLERK 01/10/2018 04:05 PM 4] INDEX NO. 709140/2016 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 01/10/2018 The branch of the motion for an order extending the time to effectuate service of process is granted, and the t ime for plaintiff to effectuate service of process upon defendant Mohammed A. Rahman is extended through and i ncluding February 23 , 2018 . A copy of this order is being faxed on this date to both sides. Date: December ;;z,j, 2017 J . S.C . <.... - I FILED JAN 10 2018 l;;;tiUNT'I' t;t,.t:l\I< QUEENS COUNTY 4 4 of 4

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