On May 5, 2004, the plaintiff allegedly sustained injuries when she slipped and fell on a Poland Spring water bottle in the parking lot of Fiesta Supermarket, located at 896 Huguenot Avenue, Staten Island, New York. On November 17, 2006, plaintiff commenced this action by filing a summons and complaint against Huguenot Properties, Inc. and Fiesta Supernette, Incorporated. In accordance with CPLR § 306(b), the plaintiff served both defendants with the summons and complaint within 120 days after the filing, on or about November 29, 2006. On or about May 5, 2007, the statute of limitations expired on the plaintiff's personal injury claim. As of August, 2007, neither defendant appeared and the plaintiff made a motion seeking a default judgment. That motion was withdrawn when, upon receipt of correspondence from defendant Fiesta Supernette, plaintiff was informed that it sold the subject premises to Richmond Fiesta Market, Inc. in August, 2000. The action was thereafter discontinued against Fiesta Supernette. Plaintiff thereafter filed an amended summons and complaint to correct the misnomer, on August 21, 2007, with service occurring on or about September 2, 2007. Presently, the plaintiff is moving for an order extending the time to file an amended summons and complaint and to extend the time to serve the amended papers for an additional 120 days. Most recently, the plaintiff has withdrawn the claims against defendant Huguenot Properties.

Generally, pursuant to CPLR § 305(a), the plaintiff may add additional parties without leave of the court if they do so within 20 days after the defendant's service of the answer. Here, no responsive pleading has been served and therefore the plaintiff is entitled to add additional parties without leave of the Court. However, the time to serve the new defendants expired on March 12, 2007, and the plaintiff is now requesting the Court extend the time to file the amended papers to 120 days after the statute of limitations expiration.

Under CPLR § 306(b) plaintiffs have 120 days to serve defendants with the summons and complaint after the filing thereof. However, two separate standards exist by which an extension may be granted, in the interest of justice and for good cause (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]). To grant an extension of time to serve the amended summons and complaint under the interest of justice standard, the Court must make a factual analysis and weigh a number of factors, including "diligence, or lack thereof . . . expiration of the Statue of Limitations, the meritorious nature of the cause of action, the length [*2]of delay in service, the promptness of a plaintiff's request for the extension of time and prejudice to defendant" (id.; Valentin v. Zaltsman, 39 AD3d 852, 852 [2d Dept., 2007]; Abu-Aqlein v. El-Jamal, 44 AD3d 884, 884 [2d Dept., 2007]; Burwell v. Yonkers Gen. Hosp., 6 AD3d 478, 480 [2d Dept., 2004]).

In this case, the plaintiff served process upon the named defendants in a timely fashion. However, on August 16, 2007, the plaintiffs were informed that the true owner of the property was not named or served as a party defendant. In accordance with CPLR § 305(a) the plaintiff timely filed an amended summons and complaint on August 21, 2007, a mere three business days after they were first notified. The plaintiff thereafter served the papers upon the new defendant on September 2, 2007, again, within two weeks of filing the summons and complaint.

It is clear that the plaintiff's delayed service was based on a reasonable mistake regarding the proper owner of the business. After notification of the error, the plaintiff immediately served Richmond Fiesta Market with an amended summons and complaint. In balancing the competing interests; while the expiration of the statute of limitations and prejudice to Richmond Fiesta Market are factors, the plaintiff's minimal delay was reasonable in light of the misnomer, not committed in bad faith or within control of plaintiffs and would have a detrimental effect on the judicial proceedings as any subsequent actions would be time barred (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 104; Valentin v. Zaltsman, 39 AD3d at 852; Robles v. Mirzakhmedov, 34 AD3d 554, 554-555 [2d Dept., 2006]; Rosenweig v. 600 North Street, LLC., 35 AD3d 705, 705-706 [2d Dept., 2006]). Therefore, in this Courts discretion, the plaintiff's motion to extend the time to file and serve the amended summons and complaint upon Richmond Fiesta Market is granted in the interest of justice.

Accordingly, it is

ORDERED that the plaintiff's motion to file and serve an amended summons and complaint upon Richmond Fiesta Market is hereby granted, and it is further

ORDERED that Richmond Fiesta Market interpose an answer within 20 days of today, and it is further,

ORDERED that the plaintiff grant Richmond Fiesta Market no extensions of time to serve an answer without prior leave of the Court, and it is further

ORDERED that the parties appear for a preliminary conference in this part on February 27, 2008, at 9:30 a.m.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: January 18, 2008E N T E R,

________________________________

Hon. Judith McMahon

Justice of the Supreme Court