De Lourdes v Lucido

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De Lourdes v Lucido 2018 NY Slip Op 34060(U) January 12, 2018 Supreme Court, Westchester County Docket Number: 59798/2017 Judge: Charles D. Wood 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: 1] WESTCHESTER COUNTY CLERK 01/18/2018 04:41 PM NYSCEF DOC. NO. 34 INDEX NO. 59798/2017 RECEIVED NYSCEF: 01/18/2018 To commence commence the statutory statutory time [al), for appeals appeals as of right (CPLR 5513 raJ), you are advised advised to serve serve a copy of this order, of entry, entry, upon all parties. with notice notice of SUPREME NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER --------------------------------------------------------------------)( --------------------------------------------------------------------X MARIA MARIA MEJIA MEJIA DE LOURDES, LOURDES, Plaintiff, Plaintiff, DECISION and and ORDER ORDER DECISION Sequence Nos. Sequence Nos. 1&2 Index No. 59798/2017 Index No. 59798/2017 against- - against ANTHONY ANTHONY LUCIDO, LUCIDO, SR., Defendants. Defendants. --------------------------------------------------------------------)( --------------------------------------------------------------------X WOOD,J. WOOD,J. following papers papers were were read in connection with defendant's defendant's motion motion to dismiss The following connection with dismiss (Seq 1), and plaintiffs plaintiffs cross-motion pursuant to CPLR cross-motion pursuant CPLR 306-b 306-b additional additional time time to serve serve (Seq (Seq 2): Defendant's Notice of Defendant's Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits. Exhibits. Plaintiffs Notice Cross-Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits. Exhibits. Notice of of Cross-Motion, Plaintiffs Defendant's Counsel's Counsel's Affirmation Affirmation in Opposition Opposition to Cross-Motion. Cross-Motion. Defendant's Plaintiffs Counsel's Counsel's Reply Reply Affirmation Affirmation in Support. Support. Plaintiffs Now, based upon upon the foregoing, foregoing, the motions motions are decided decided as follows: follows: Now, based personal injury injury action action involving involving a motor motor vehicle vehicle accident accident on July July 31, 2014, 2014, on In this personal Tarrytown Road Road in Greenburgh, Greenburgh, plaintiff complaint on June 2017, with with the Tarrytown plaintiff filed a summons summons and complaint June 28, 2017, Westchester County County Clerk's Clerk's Office. Office. Service Service of of the summons summons and and complaint complaint upon upon defendant defendant was Westchester supposedly effectuated effectuated on July 2017,11:07 P.M., P.M., at 20 Otis Avenue Avenue in White Plains, by leaving leaving supposedly July 25, 2017, White Plains, documents with with Janice Smith, a co-tenant, co-tenant, a person person of suitable age and discretion, discretion, a copy of said documents Janice Smith, of suitable followed by depositing depositing said documents documents in the mail to defendant defendant at the above above address, address, his usual place place followed of abode. of 1 1 of 4 ,.,., ,._ ,. [*FILED: 2] WESTCHESTER COUNTY CLERK 01/18/2018 04:41 PM NYSCEF DOC. NO. 34 INDEX NO. 59798/2017 RECEIVED NYSCEF: 01/18/2018 September 11, 2017, 2017, defendant defendant interposed interposed an answer answer to the summons complaint. On September summons and complaint. Defendant Defendant now now challenges challenges said service service through through his affidavit affidavit that that he presently presently resides resides at 17 Cedarwood Road in White White Plains, Plains, and has resided resided there there since May 2017. 2017. He claims claims that he Cedarwood since May submitted New submitted a change change of of address address form with with the Post Office Office in May 2017, 2017, and had had notified notified the New York State Department Department of of Motor Motor Vehicles Vehicles of of same. At the time time of of the attempted attempted service service in July July York 2017, at 20 Otis A Avenue, place of of service service was not his residence residence or usual usual place place of of abode. abode. Thus, Thus, 2017, venue, the place claims he has never never been been personally served with with a copy of of the summons summons and complaint. complaint. he claims personally served consequence of of failure failure to effectuate effectuate proper proper service, service, defendant defendant moves moves this court court for an As a consequence order pursuant pursuant to CPLR CPLR 3211 (a)(8) (a)(8) dismissing dismissing the instant instant action action and pursuant CPLR 321 3211l(a)(S) (a)(5) order pursuant to CPLR dismissing the within within action action on statute statute of of limitations limitations grounds. grounds. dismissing response, plaintiff plaintiff cross moves pursuant CPLR 306-b 306-b permitting permitting plaintiff plaintiff additional additional In response, cross moves pursuant to CPLR service defendant defendant in the interest interest of of justice and/or for good good cause. cause. Plaintiff Plaintiff argues argues that that the bare time to service justice and/or unsubstantiated claim claim of of address address change change without without competent competent proof proof and the failure failure to register register with with unsubstantiated within 10 days prevents prevents defendant defendant from challenging services. Morever, Morever, plaintiff plaintiff served served challenging services. DMV within defendant at his former former address address within within the 120 day period. Thus, plaintiff's plaintiff's failure failure to timely timely serve serve defendant period. Thus, process result of circumstances beyond beyond her control. control. Good Good cause cause is shown believes of circumstances shown as plaintiff plaintiff believes process was a result reasonably diligent diligent efforts efforts to make make timely timely service. service. Plaintiff Plaintiff also also argues argues that that in the interest interest she made reasonably of justice application should should be granted, granted, as there there was no prejudice defendant, and the statute of justice her application prejudice to defendant, statute oflimitations has run, run, insofar insofar as the motor motor vehicle vehicle accident accident occurred occurred on July July 14, 14,2014, therefore the oflimitations 2014, therefore elapsed on July July 14, 14,2017. three year period period elapsed 2017. well-settled that that an action action is commenced commenced by filing a summons summons and complaint complaint pursuant pursuant It is well-settled CPLR 304 [a]), [aD, and service service of of the summons complaint ... ... shall shall be made made within within one hundred hundred to CPLR summons and complaint 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/18/2018 04:41 PM NYSCEF DOC. NO. 34 INDEX NO. 59798/2017 RECEIVED NYSCEF: 01/18/2018 twenty days after after the commencement commencement of of the action" action" (CPLR (CPLR 306-b). motion pursuant pursuant to CPLR CPLR twenty 306-b). A motion 306-b for leave leave to extend extend the time time for service of a summons summons and complaint complaint may may be granted granted upon 306-b service of upon "good cause cause shown interest of of justice" (Wilbyfont v New York Presbyterian Presbyterian Hosp Hosp.,.. 131 "good shown or in the interest justice" (Wilbyfont New York AD3d 605, 605, 606 [2d Dept Dept 2015]). 2015]). The determination determination of of whether whether to grant grant the extension extension in the interest interest AD3d of justice within the discretion discretion of of the motion motion court court (Baione (Baione v Zambrano, Zambrano, 22 AD3d AD3d 698, 698, 699 [2d of justice is within 2005]). Good Good cause cause will not exist exist where where a plaintiff plaintiff fails to make make any effort effort at service service or fails Dept 2005]). least a reasonably reasonably diligent diligent effort effort at service (Bumpus v New Yark City City Transit Transit Auth., Auth., 66 to make at least service (Bumpus New York A.D.3d 26, 3131-32, Dept 2009]). 2009]). The interest interest of broader than than the good cause A.D.3d 32, [2d Dept of justice justice standard standard is broader cause standard (Bumpus (Bumpus v New York City Transit Auth.,.• 66 AD3d AD3d at 32). In deciding deciding whether whether to grant grant an standard New York Transit Auth extension of oftime serve copies copies of of a summons summons and complaint complaint in the interest interest of of justice, "the court court time to serve justice, "the extension consider diligence, diligence, or lack thereof, thereof, along along with with any other other relevant relevant factor factor in making making its may consider determination, including including expiration expiration of ofthe Statute of of Limitations, Limitations, the [potentially] [potentially] meritorious meritorious nature nature determination, the Statute of the cause cause of of action, action, the length length of of delay service, the promptness promptness of of a plaintiff's plaintiffs request request for the of delay in service, extension of of time, time, and prejudice prejudice to defendant" defendant" (Wilson (Wilson v City ofNew of New York. York, 118 AD3d AD3d 983, 984 [2d extension Dept 2014 2014]). If good good cause cause for an extension extension is not established, established, courts courts must must consider consider the "interest "interest of of Dept ]). If justice" standard of of CPLR CPLR 306-b 306-b (Bumpus (Bumpus v New York City Transit Auth., 66 AD3d AD3d at 32). 32). justice" standard New York Transit Auth., Based upon upon the record, record, plaintiff plaintiff demonstrated demonstrated a reasonable reasonable excuse delay in serving Based excuse for the delay serving complaint upon upon defendant defendant and a potentially potentially meritorious meritorious cause cause of of action action against defendant (Harris (Harris a complaint against defendant City of New York, York, 121 121 A.D.3d A.D.3d 852,855, 852, 855, [2d Dept Dept 2014]). 2014]). Given Given the the attempt attempt at service service within within the v CityofNew 120 day period; period; relatively relatively short short length length of of the delay; delay; the fact ,that the plaintiff plaintiff sought extension that the sought an extension of time to serve serve the complaint; complaint; the fact that statute statute of of limitations limitations has expired, expired, plaintiff plaintiff has satisfied of satisfied cause and interest interest of of justice standard. Moreover, Moreover, defendant defendant has not demonstrated demonstrated that that he justice standard. the good cause 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/18/2018 04:41 PM NYSCEF DOC. NO. 34 INDEX NO. 59798/2017 RECEIVED NYSCEF: 01/18/2018 would would suffer suffer any significant significant prejudice prejudice from allowing allowing the late service service of of plaintiffs plaintiff's complaint. complaint. view of ofthe above, and based based on the public public policy favor of of resolving resolving cases cases on the merits, merits, In view the above, policy in favor plaintiff's cross motion motion to compel compel defendant defendant to accept accept service service of of the complaint complaint is granted. granted. plaintiffs cross other relief relief requested requested and not decided decided herein herein is denied. denied. The The foregoing foregoing shall constitute the Any other shall constitute Decision Decision and Order Order of of this this Court. Court. Accordingly, for the stated stated reasons, reasons, it is hereby hereby Accordingly, ORDERED, that that defendant's defendant's motion motion (Seq 1) to dismiss dismiss is denied denied in its entirety, entirety, and the cross cross ORDERED, motion by plaintiff plaintiff (Seq (Seq 2) for an order order pursuant pursuant to CPLR CPLR Section Section 306-b 306-b extending extending the time time for motion service of of process process upon upon defendant defendant is granted, granted, to the extent extent that that plaintiff plaintiff is granted additional 60 service granted an additional entry date ofthis of this order order to serve serve defendant defendant of of the summons summons and and verified verified complaint complaint as days from the entry proposed in plaintiff accordance with with the CPLR; CPLR; and it is further further proposed plaintiffss papers papers in accordance ltd "1 ~ f'.A•;aJ ORDERED, that that the parties parties are directed directed to appear appear in the Preliminary Preliminary Conference Conference Part on ORDERED, •. 4- qJ• q J- ~ A-N1 2018, in Room Room 811, at the Westchester Westchester County County Courthouse, Courthouse, 111 III Dr. Martin Martin Luther Luther ~~ J ~': 2018, /~,7 a+ Blvd., White White Plains, Plains, New New York York 10601. King Jr. Blvd., White Plains, Plains, New York New York Dated: White January 12, 2018 2018 January ,,J.S.C. J.S.C. To: Parties by NYSCEF All Parties NYSCEF 4 4 of 4

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