Smushkevich v Perel
Annotate this CaseDecided on September 9, 2020
Supreme Court, Kings County
Zoya Smushkevich, Plaintiff,
against
Allan B. Perel and Naomi Perel, Defendants.
501843/2020
Attorney for Plaintiff
Law Office of Yuriy Prakhin
1883 86th Street, FL 2
Brooklyn, NY 11214
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Zoya Smushkevich, filed on May 27, 2020, under motion sequence one, for an order pursuant to CPLR 306-b extending plaintiff's time to effectuate service of the summons and complaint upon defendants Allan B. Perel and Naomi Perel.
Notice of Motion
Affirmation in Support
Exhibit A-B
BACKGROUND
On January 24, 2020, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerks' office (hereinafter KCCO). The verified complaint contains the following salient allegations of fact. On December 30, 2019, plaintiff was lawfully walking at or near the intersection of Brighton 1st Road and Brightwater Court in Brooklyn, New York. On the same date, time and place, defendant Naomi Perel was driving a 2017 Hyundai motor vehicle, bearing New York State license plate number HPN5490 (hereinafter the defendants' vehicle) with the knowledge and consent of its owner, Allan B. Perel.
Naomi Perel struck the plaintiff with the defendants' vehicle while traveling at or near the intersection of Brighton 1st Road and Brightwater Court in Brooklyn. The collision caused the plaintiff to sustain serious physical injuries. The collision was caused by Naomi Perel's negligent operation of the defendants' vehicle.
MOTION PAPERS
The plaintiff's motion papers consist of a notice of motion, an affirmation in support, and two annexed exhibits labeled A and B. Exhibit A is a copy of the instant summons and complaint. Exhibit B is described as a process server's activity log.
LAW AND APPLICATION
Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (JPMorgan Chase Bank v Kothary, 178 AD3d 791, 792 [2nd Dept 2019], citing CPLR 306-b). CPLR 306-b provides, in relevant part, that service of the summons and complaint ... shall be made within one hundred twenty days after the commencement of the action. CPLR 306-b further provides that, 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, extend the time for service (Chase Home Fin., LLC v Berger, 185 AD3d 1000 [2nd Dept 2020]).
A court may, in the exercise of its discretion, extend a plaintiff's time to serve a complaint upon good cause shown or in the interest of justice (CPLR 306-b; State of NY Mtge. Agency v Braun, 182 AD3d 63, 66 [2nd Dept 2020]; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104—105 [2001]; Bumpus v New York City Tr. Auth., 66 AD3d 26, 31—32 [2nd Dept 2009]). Good cause and interest of justice are two separate and independent statutory standards (Bumpus, 66 AD3d at 31). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (BAC Home Loans Servicing, L.P. v Herbst, 180 AD3d 980, 981 [2nd Dept 2020], quoting Bumpus, 66 AD3d at 31). "Good cause will not exist where a plaintiff [*2]fails to make any effort at service ... or fails to make at least a reasonably diligent effort at service. By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control" (Poyser v JCF Trucking Corp., 184 AD3d 886 [2nd Dept 2020], quoting Bumpus, 66 AD3d at 31-32).
In considering the interest of justice standard, 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 (Leader, 97 NY2d at 105-106).
On January 24, 2020, the plaintiff commenced the instant action by filing the commencement papers with the KCCO. In accordance with CPLR 306-b, the plaintiff had one hundred and twenty days from that date, that is until May 27, 2020, to serve the commencement papers on the defendants.
Plaintiff's counsel stated that he inadvertently failed to timely obtain a New York State Department of Motor Vehicles (DMV) search of the defendants to give to his process server before the deadline. Had counsel done so diligently, the process server would have been able to use the DMV search to verify the defendants' address. With the deadline for effectuating service looming, the plaintiff made the instant motion seeking additional time to effectuate service. Due to the plaintiff's admitted lack of due diligence, the plaintiff made no attempt to serve the commencement papers on the defendants before the deadline elapsed. Plaintiff has not met the good cause standard for granting an extension. On the other hand, the plaintiff should be granted an extension pursuant to the interest of justice statutory standard. While the deadline was approaching, the entire country, including the State of New York, were impacted by a worldwide pandemic. To combat the virus, the Governor of the State of New York, among other things, issued an Executive Order directing all but essential service workers to stay at home during part of the time period that plaintiff was required to effectuate service. The Executive Order also impacted the Courts, such that only emergency motions could be filed while the stay at home order was in effect. Considering the circumstances, plaintiff made the motion within a reasonable time and the request for an extension should be granted.
CONCLUSION
The motion of plaintiff Zoya Smushkevich for an order pursuant to CPLR 306-b extending plaintiff's time to effectuate service of process of the summons and complaint upon defendants Allan B. Perel and Naomi Perel is granted.
Plaintiff's time to serve Allan B. Perel and Naomi Perel is extended to December 18, 2020. Plaintiff is directed to file an affidavit of service by December 29, 2020.
The foregoing constitutes the decision and order of this Court.
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