Campbell v Murray

[*1] Campbell v Murray 2022 NY Slip Op 22382 Decided on December 14, 2022 Supreme Court, Bronx County Hummel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 14, 2022
Supreme Court, Bronx County

Raquel Campbell and AKIEL CAMPBELL, Plaintiffs,

against

Edward Murray, SHEQUILLE J. CARTER, and EASTCHESTER CHRYSLER, Defendants.



Index No. 809950/2021E



Plaintiffs Raquel Campbell and Akiel Campbell
William E. Hackwelder, Esq. (whackwelder@klglawyer.com)
Kuharksi Levitz & Giovinazzo, Esqs.
176 Hart Boulevard
Staten Island, NY 10301
(718) 448-1600

Defendants Edward Murray and Shequille J. Carter
Katherine W. McGerald, Esq. (kmcgerald@kbnylaw.com)
Keane & Bernheimer, PLLC
480 Bedford Road, Suite 3201
c/o Westchester Business Suites
Chappaqua, NY 10514
(914) 345-0005

Defendant Eastchester Chrysler
[No representation recorded] Veronica G. Hummel, J.

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with: (1) defendants EDWARD MURRAY's ("Murray") and SHEQUILLE J. CARTER's ("Carter"; and, together with Murray, "Defendants") motion (Seq. No. 1) seeking (a) an order, pursuant to CPLR 3211(a)(5), dismissing plaintiffs RAQUEL CAMPBELL's and AKIEL CAMPBELL's (together, "Plaintiffs") Complaint as untimely filed under the statute of limitations applicable to their claims or, alternatively, (b) an order, pursuant to CPLR § 306-b, dismissing Plaintiffs' Complaint as against Carter for Plaintiffs' failure to timely serve Carter; and (2) Plaintiffs' cross-motion (Seq. No. 1) [*2]seeking an order, pursuant to CPLR § 306-b, extending Plaintiffs' time to serve Carter. For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART, and the cross-motion is DENIED.

This is a personal-injury action arising out of a motor-vehicle accident that occurred over four years ago on June 4, 2018, on 10th Street, at or near 554 South 10th Street, in Mount Vernon, Westchester County, New York.

There is no dispute that the applicable statute of limitations is three years pursuant to CPLR § 214(5). As a result, because Plaintiffs' injuries allegedly occurred on June 4, 2018, ordinarily their Complaint must have been filed by June 4, 2021, to be timely. Plaintiffs filed theirComplaint two weeks later, on June 18, 2021.

Resolution of this motion turns, however, on whether then—Governor Andrew Cuomo's Executive Orders (the "EOs") issued in response to the COVID-19 pandemic [FN1] either suspended or tolled the state's statutes of limitation. These EOs took effect on March 20, 2020, and expired on November 3, 2020.

Recently, in Murphy v. Harris, 2022 NY Slip Op. 06086 (1st Dep't Nov. 1, 2022), the First Department ruled that the EOs operated as a toll, expressly adopting the Second Department's reasoning in Brash v. Richards, 195 AD3d 582 (2d Dep't 2021).

Nevertheless, Defendants contend that even if the EOs constituted a toll of the statute of limitations, Plaintiffs should not receive the benefit of the toll because the statutory deadline to file their Complaint fell outside of the toll period.

Murphy, however, does not support Defendants' contention. There, the First Department observed that "[a] toll suspends the running of the statute of limitations for a finite period, whereas a suspension only delays the expiration of the time period until the end date of the suspension." Murphy, 2022 NY Slip Op. 06086, at *1 (citing Brash, 195 AD3d at 582). Nowhere in its decision did the First Department distinguish between statutory filing deadlines that fell within or outside of a toll period or hold that the toll only suspends the running of a statute of limitations in the former rather than the latter case.

Nor did the First Department apply the toll in such a way in Murphy. In an amended complaint filed on February 12, 2021, the plaintiffs in Murphy brought both a conscious-pain-and-suffering and a loss-of-consortium claim. The First Department specifically noted that it was unclear whether those claims sounded in medical malpractice or general negligence, but that it was undisputed that the claims accrued on May 10, 2018. Id. at *2. If, on one hand, the claims sounded in medical malpractice, the applicable statute of limitations would have been 2 ½ years (id. (citing CPLR 214-a)), placing the filing deadline on November 10, 2020—seven days after the EOs' expiration date of November 3, 2020, and approximately three months before the Complaint was filed on February 12, 2021. If, on the other hand, the claims sounded in general negligence, the applicable statute of limitations would have been three years (id. (citing CPLR 214)), placing the filing deadline on May 10, 2021. Thus, in the first scenario, where the claims sounded in medical malpractice, the claims would have been untimely when filed without the benefit of the EOs' toll. The First Department, however, held that the claims were timely regardless of whether they sounded in medical malpractice or general negligence, with the implication clearly being that the toll applied in either scenario. Id.

Here, on March 20, 2020, Plaintiffs had 442 days (or one year, two months, and 16 days) remaining on the limitations period in which to file their claims. That 442 days began to run again on November 3, 2020, when the toll expired, resulting in a new filing deadline for Plaintiffs' claims of January 19, 2022. Thus, Plaintiffs' initiation of this action by the filing of the Complaint on June 18, 2021, was timely

Defendants also contend that the Complaint should still be dismissed as against Carter because Plaintiffs failed to serve Carter within the 120 days mandated by CPLR § 306-b. Plaintiffs filed an affidavit of service with respect to Murray but not Carter.

In the cross-motion, Plaintiffs effectively concede that they never served Carter with the Complaint in this action based on a 2018 accident, and instead move for an extension in time to complete said service in the "interests of justice." Where a plaintiff seeks an extension of time to complete service pursuant to CPLR § 306-b in the "interests of justice," the plaintiff "need not establish reasonably diligent efforts at service as a threshold matter." Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105 (2001). In evaluating such a request, however, a court "may consider diligence, or lack thereof, along with any other relevant factor . . . , including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of [the] plaintiff's request for the extension of time, and prejudice to [the] defendant." Id. at 105-06; Henneberry v. Borstein, 91 AD3d 493, 496 (1st Dep't 2012). A court's decision to grant or deny an extension, based on a weighing of these and other relevant factors, is purely discretionary, and "[n]o one factor is determinative." Leader, 97 NY2d at 106.

In this case, Plaintiffs fail to make a showing that an extension of time to serve Carter with the Complaint would satisfy the "interests of justice" standard. The following four nonexclusive Leader factors weigh in favor of denying an extension:

• First, Plaintiffs do not show that they made any attempt to serve Carter within 120 days after filing or at any time up until the filing of Plaintiff's cross-motion on June 21, 2022. Indeed, Plaintiffs do not even address Plaintiffs' diligence, or lack thereof, in the cross-motion.• Second, Plaintiffs failed to request an extension of time to complete service until after Defendants filed their motion to dismiss. That request was first made in Plaintiffs' cross-motion, which was filed on June 21, 2022, more than a year after the Complaint was filed and more than eight months (249 days) after the expiration of the 120-day statutory service period.• Third, if the Court were to grant Plaintiffs an extension, and even if Plaintiffs were to serve Carter with the Complaint immediately after the issuance of the Court's order, Carter still will not have been served until approximately 1 ½ years after the initial filing.• Fourth, Plaintiffs fail to demonstrate that the cause of action against Carter is meritorious. In paragraph 9 of the attorney affirmation submitted in support of the cross-motion, counsel appears to begin to argue why the cause of action is meritorious, writing, "Here, the plaintiff has a meritorious cause of action as they were " That sentence and paragraph end abruptly, however, after the word "were." As such, the submission fails to demonstrate merit.

The confluence of all four of these Leader factors here distinguishes the circumstances of this case from the cases on which Plaintiffs rely. Additionally, the police accident report does not list Carter as having been present in either vehicle involved in the accident, and, in fact, Carter is [*3]not mentioned in the report. The report does, however, list Murray as the driver of one of the vehicles when the accident occurred. Hence, there is no evidence that Carter was a party to the accident or on notice of this action.

The foregoing factors are counterbalanced by two other Leader factors weighing in favor of granting an extension. Specifically, the applicable statute of limitations has now expired, so the denial of an extension and the granting of dismissal without prejudice, as CPLR § 306-b mandates, would constitute a de facto dismissal with prejudice. And, because Carter has appeared via attorneys for the limited purpose of making the motion to dismiss, and those attorneys also represent Murray and have filed an Answer on Murray's behalf, Plaintiffs argue that Carter would not suffer significant prejudice by the granting of an extension to serve Carter. The latter argument, however, could be made in opposition to essentially any motion to dismiss for failure to timely serve pursuant to CPLR § 306-b, as the statute mandates that a court can grant dismissal on those grounds only "upon motion," so a defendant must always appear in the action for the limited purposes of making the dismissal motion.

Based on the record, the Court finds that Plaintiffs' failure to demonstrate due diligence in serving Carter; to justify the unreasonable delay in seeking an extension of time to effect service; and to demonstrate that the cause of action against Carter is meritorious, combined with the showings that undue delay in serving Carter would result from the granting of an extension and the lack of Carter's relative importance to Plaintiffs' prosecution of the action, jointly outweigh the factors weighing in favor of granting an extension. Accordingly, Plaintiffs' cross-motion, pursuant to CPLR § 306-b, is denied.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by a party was not addressed by the Court, it is hereby denied.

Accordingly, it is hereby:

ORDERED that that part of defendants EDWARD MURRAY's ("Murray") and SHEQUILLE J. CARTER's ("Carter"; and, together with Murray, "Defendants") motion (Seq. No. 1) that seeks an order, pursuant to CPLR 3211(a)(5), dismissing plaintiffs RAQUEL CAMPBELL's and AKIEL CAMPBELL's (together, "Plaintiffs") Complaint as untimely filed under the statute of limitations applicable to their claims is DENIED; and it is further

ORDERED that that part of Defendants' motion (Seq. No. 1) that seeks an order, pursuant to CPLR § 306-b, dismissing Plaintiffs' Complaint as against Carter based on Plaintiffs' failure to timely serve Carter is GRANTED; and it is further

ORDERED that Plaintiffs' cross-motion (Seq. No. 1), seeking an order, pursuant to CPLR § 306-b, extending Plaintiffs' time to serve Carter is DENIED; and it is further

ORDERED that the Clerk shall enter judgment dismissing Plaintiffs' Complaint and any cross-claims as asserted against Carter and severing the remaining action; and it is further

ORDERED that the caption of this action shall henceforth read as:

__________________________________________

RAQUEL CAMPBELL and AKIEL CAMPBELL,

Plaintiff,

-against- EDWARD MURRAY and EASTCHESTER
CHRYSLER,

Defendants.
__________________________________________


; and it is further

ORDERED that Plaintiffs shall, within thirty (30) days of the upload of this Order to [*4]NYSCEF, file to NYSCEF a completed form EF 22 [FN2] so that the NYSCEF clerk is notified to amend the caption of this action accordingly; and it is further

ORDERED that the Clerk shall mark the motion and cross-motion (Seq. No. 1) disposed in all Court records.

This constitutes the decision and order of the Court.

Dated: December 14, 2022
HON. VERONICA G. HUMMEL, A.J.S.C. Footnotes

Footnote 1:9 NYCRR 8.202.8, 8.202.14, 8.202.28, 8.202.38, 8.202.55, 8.202.60, and 8.202.67.

Footnote 2:NYSCEF Form EF 22 can be found at the following link: https://iappscontent.courts.state.ny.us/NYSCEF/ live/forms/notice.to.county.clerk.pdf