Supreme Court, Nassau County, May 15, 2020

James Trainor, New York City, for defendants.

Lance S. Grossman, New York City, for plaintiff.

Defendants move (seq 001) for an order inter alia dismissing the complaint against defendant Shea on the ground that it is barred by the statute of limitations; plaintiff cross-moves (seq 002) for an order inter alia striking the defendants' answer.

Defendants' motion presents not only procedural issues suitable for a bar examination, but a novel question which has not specifically been addressed by an appellate court: should the [*2]clause in CPLR 205 (a)'s six-month extension of time to refile an action that has been dismissed—"provided that . . . service upon defendant is effected within such six-month period" (emphasis added)—mean that service of process pursuant to CPLR 308 (2) must be delivered "to a person of suitable age and discretion" and mailed to that person's "last known residence or . . . actual place of business," in accordance with the two-step procedural requirements of that statute, before the expiration of that six-month period, or should the word "effected" be interpreted to mean, within the context of CPLR 308 (2) service of process, that the process must also, within that six-month window, be filed with the "clerk of the court" and thus "complete[d]" (emphasis added) 10 days after that filing?

The underlying action seeks to recover commissions which are allegedly due and owing pursuant to an oral agreement between the parties. The plaintiff asserts in its fourth cause of action pursuant to Debtor and Creditor Law § 274 that the defendants fraudulently conveyed assets to avoid paying those commissions. This cause of action is identical to the fourth cause of action asserted by the plaintiff in a prior action between the parties in the District Court of Nassau County. The first, second and third causes of action in plaintiff's District Court complaint were dismissed on the ground of lack of subject matter jurisdiction. The court noted in its order dated and entered on January 13, 2017 (Darcy, J.) that the fourth cause of action was voluntarily discontinued by the plaintiff in its{**68 Misc 3d at 481} cross motion "in the event" the three other causes of action were dismissed, and consequently the court ordered the fourth cause of action discontinued pursuant to CPLR 3217 (b). The plaintiff did not appeal or reargue the District Court order of January 13, 2017.

Instead, five months and 24 days later, on July 7, 2017, the plaintiff filed the instant action. On July 10, 2017, defendant Shea was served by substituted service pursuant to CPLR 308 (2) at his place of business. The process server avers that he mailed a copy of the summons and complaint on July 11, 2017; process was filed with the County Clerk that same day.

The defendants argue that the service of process on defendant Shea was completed pursuant to CPLR 308 (2) on July 21, 2017, six months and eight days after the January 13, 2017, dismissal by the District Court of plaintiff's identical prior action, and thus barred by CPLR 205 (a).

CPLR 205 (a) states in relevant part that

"[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period" (emphasis added).

CPLR 308 states in relevant part that

"[p]ersonal service upon a natural person [may] be made . . .

"2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be [*3]served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend 'personal and confidential' and not indicating on the outside thereof, by return{**68 Misc 3d at 482} address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing" (emphasis added).

In support of their argument that the plaintiff's action is time-barred by CPLR 205 (a), the defendants rely on a lengthy, thorough, trial court decision in the Fourth Department, Matter of Roth v Syracuse Hous. Auth. (2002 NY Slip Op 40550[U] [Sup Ct, Odondaga County, July 17, 2002, Paris, J.], affd 306 AD2d 921 [2003] [for the reasons stated at Supreme Court], lv denied 1 NY3d 507 [2004]), which granted summary judgment in favor of the defendants and dismissed each cause of action asserted against them, and also held that service of process on a defendant was required to be pursuant to CPLR 308 (2) within the six-month time frame allowed by CPLR 205 (a). Defendants' counsel maintains that since the Appellate Division, Second Department, has not ruled on whether service must be made, or completed, pursuant to CPLR 308 (2) within the six-month period, this court is bound by Roth by the doctrine of stare decisis (see e.g. Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]).

This court respectfully declines to follow Roth since the Appellate Division, Second Department has interpreted CPLR 308 differently in an analogous setting, attempting to "effectuate" service of process within the 120-day time frame required by CPLR 306-b (see Mighty v Deshommes, 178 AD3d 912, 915 [2d Dept 2019]) and the fact that Fourth Department has never discussed specifically the meaning of the word "effected" within the context of service of process in the six-month savings period permitted by CPLR 205 (a).

" '[A] court, in interpreting a statute, should attempt to effectuate the intent of the Legislature. As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof' (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [citations and internal quotation marks omitted])" (State of New York Mtge. Agency v {**68 Misc 3d at 483}Braun, 182 AD3d 63, 69-70 [2d Dept 2020]).

The Court of Appeals has

"recognized that meaning and effect should be given to every word of a statute. 'Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning' (Cohen v Lord, Day & Lord, 75 NY2d 95, 100; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 231)" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]; see Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 67 [2019]; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]; McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a]).

Applying these fundamental principles of statutory construction here, this court concludes that the legislature could have clearly and simply stated in CPLR 205 (a) the word completed instead of effected in the context of service of process pursuant to CPLR 308, especially since the legislature declared in CPLR 308 (2) and (4) that "service [is] complete ten days after [the] filing [of the affidavit of the service of process with the clerk of the court]." [*4]Consequently, this court holds that the word effected as stated in CPLR 205 (a) must be construed as embodying only the two-prong jurisdictional predicate in CPLR 308 (2) of "delivering" and then "mailing" the process within a 20-day period (see Siegel & Connors, NY Prac § 52 at 89 [6th ed 2018] ["if the plaintiff in the second action uses the substituted service methods in CPLR 308(2) and (4), both service steps must be carried out within the 6 month period (mandated by CPLR 205 [a])"]); see also Wells Fargo Bank, N.A. v Heaven, 176 AD3d 761, 762-763 [2d Dept 2019]), and should not be interpreted to also include the eventual "complet[ion]" of that service of process whenever it is filed with the clerk of the court (see Siegel & Connors, NY Prac § 72 at 141 [6th ed 2018] ["(s)ervice . . . becomes 'complete' 10 days after proof of service is filed . . . means only that the defendant's responding time will not start until then. . . . The 'completion' of service under CPLR 308(2) has nothing to do with the statute of limitations . . . which is satisfied if . . . (b)oth the delivery and the mailing (are) carried out within the 120-day period for service that follows the filing of the action"]). "[T]he failure to file proof of service within the time specified in CPLR 308 (4) was not a jurisdictional defect but was rather a 'procedural irregularity' that could be cured by an order permitting the late filing of proof of service,{**68 Misc 3d at 484} absent an order curing the irregularity" (Rodriguez v Rodriguez, 103 AD3d 117, 120-121 [2d Dept 2012]).

Accordingly, the branch of defendants' motion for an order pursuant to CPLR 3211 (a) (5) dismissing the complaint against defendant Shea on the ground that it is time-barred is denied.

The branch of defendants motion for an order dismissing the fourth cause of action against ASTI or alternatively, if the branch of defendants' motion to dismiss pursuant to CPLR 3211 (a) (5) is denied, granting the defendants leave to amend their answer, pursuant to CPLR 3025 (b) and 203 (d), to allege additional affirmative defenses and counterclaims consistent with the proposed amended answer annexed to the moving papers, is granted in its entirety (see CPLR 3217 [b]; 3025 [b]).

"[A] voluntary discontinuance, by any method at all [i.e., by notice, by stipulation, or by order], is an exception to CPLR 205(a) and does not get the six months [to recommence the action]. A discontinuing plaintiff planning to start over must . . . always make sure either that the original statute of limitations is still alive or that the plaintiff has in hand an agreement by the defendant not to interpose the statute of limitations defense in the new action" (see Siegel & Connors, NY Prac § 298 at 561 [6th ed 2018]).

The proposed amended answer shall be deemed served by the electronic uploading of this order to the court's e-filing system.

The cross motion by the plaintiff for an order (1) pursuant to CPLR 3126 (3) striking defendants' answer for failing to comply with plaintiff's demand for documents and demand for responses to the interrogatories 57-80 propounded by the plaintiff, or alternatively, (2) for an order pursuant to CPLR 3126 (2), precluding the defendants from offering into evidence at trial any documents pertaining to the plaintiff's demand for documents and demand for responses to interrogatories, or alternatively, (3) for an order pursuant to CPLR 3126 (1), resolving in plaintiff's favor the issues contained in the documents demanded, or alternatively, (4) compelling the defendants to respond to the plaintiff's document demands and responses to interrogatories 57-80, is granted to the extent that the defendants shall comply with plaintiff's document demands and responses to interrogatories 57-80 within 60 days after the service of a copy of this [*5]order upon the defendants' attorney. However, in the interests of judicial and litigation economy,{**68 Misc 3d at 485} this court directs that a settlement conference be conducted, either telephonically or by Skype for business, on June 17, 2020, at 11 a.m., in view of the coronavirus pandemic and the subsequent orders promulgated by the executive and judicial branches of government. Counsel are directed to contact the undersigned by remote email on June 15 to ascertain whether the conference will take place as scheduled. In the event that the parties cannot agree on settling the matter, then respective counsel shall communicate with each other on a stipulation, to be "so-ordered," regarding the scheduling of all outstanding discovery.