Upon the foregoing papers, defendant Mark Geringer (Geringer) moves, pursuant to CPLR 306, for an order dismissing plaintiff's complaint on the grounds that plaintiff failed to properly serve defendant within the statutory time, and plaintiff Michael Lonuzzi (Lonuzzi) cross-moves, pursuant to CPLR 306-b, for an order granting him permission to have the 120-day period of service under said statutory sub-section extended, nunc pro tunc, and to deem timely the service of the summons with notice and complaint upon Geringer that was effected on March 4, 2008 and September 11, 2008.

As alleged by plaintiff, the accounting firm, defendant Koch Geringer & Co., LLP (the Koch Group) had for many years provided personal and business accounting services to plaintiff. Such services included the rendering of tax advice. Geringer, a senior member of the Koch Group, personally handled a significant portion of Lonuzzi's accounting and tax needs, including several different tax shelters.

In 2000, Lonuzzi allegedly received substantial additional income from the payment of a mortgage that had come due. As his accountant, Geringer recommended that Lonuzzi defer the gains by investing in a company called Jackson Johnnie Music, Inc. (Jackson Johnnie). To this end, Geringer provided Lonuzzi with wire transfer instructions for the investment, which was to be in the amount of $1.0 million. Lonuzzi then wired that sum of money into the designated account.

No portion of the money was ever reimbursed to plaintiff. Gerenger purportedly admitted to plaintiff and others ^[FN1] that he alone controlled Jackson Johnnie, and that he used the entire sum transferred by plaintiff for his own purposes.

As set forth in affidavits submitted by plaintiff and his brother, attorney John Lonuzzi, Geringer has known of his liability to plaintiff for many years, and fled the United States to avoid his creditors. With the help of private investigators, plaintiff eventually located Geringer in Panama and, in 2002, met with him. At that time, Geringer allegedly signed a confession of judgment in favor of plaintiff, and commenced, but never completed, the process of transferring Panamanian property to plaintiff to offset the debt.

Plaintiff asserts that Geringer spent approximately five years living outside of the United States before resurfacing in this country. Based upon public records, plaintiff alleges that Gerenger, sometime on or after June 27, 2007, obtained a New York State driver license and affirmatively provided 1733 East 16th Street, Brooklyn, as his home address.

Plaintiff filed a summons with notice in Kings County on March 13, 2003, within the applicable statute of limitations. A verified complaint was filed on July 17, 2003. The earliest dates of alleged wrongdoing are set forth as "on or about October 20, 2000." According to the affidavits of service filed with the court, service of the summons with notice was made upon all defendants, including Geringer, on March 19, 2003 at the office of Koch, Geringer & Co., 333 Seventh Avenue, New York, New York, six days after plaintiff filed the summons with notice. At oral argument, counsel for Koch, Geringer & Co. (which interposed a cross-claim against defendant Geringer), explained that the firm had accepted service for all defendants on March 19, 2003, and that the pleading had been forwarded to his firm as counsel under their insurance coverage. Attorney Scott Kossove stated that when the conflict in representation of both the Koch firm and Geringer was recognized, the Larkin firm was retained by the carrier to represent Geringer.

Apparently recognizing the defect in the 2003 service upon the Koch firm, plaintiff contends that Geringer was validly served on two occasions. On March 4, 2008, a summons with notice and complaint were served on Geringer, who neither answered nor moved with respect thereto, by service upon his mother at 1733 East 16th Street, Brooklyn, New York, and by mailing a copy of the pleadings to his last known residence on March 16, 2008. Plaintiff alleges that said address is that which was on file with the Department of Motor Vehicles of the State of New York for Geringer, and, in support of said representation, provides a departmental abstract.^[FN2] Subsequently, on or about September 11, 2008, plaintiff caused the pleadings to be served on the offices of Konigsberg, Wolff & Co., P.C. at 440 Park Avenue South, 10th Floor, New York, New York, Geringer's actual place of business.

Addressing the assertion that on March 19, 2003, plaintiff attempted to serve all the defendants at the offices of the Koch Group, Geringer states that in June of 2001, he had separated from that firm, and was neither affiliated in any way with it, nor maintained his actual place of employment at the Koch Group's offices, on March 19, 2003. He avers that plaintiff knew of this fact through the firm's notification, as well as through a meeting with Geringer that took place in August of 2002. [*3]

Geringer further denies that he resided with his mother at the time service was "attempted" at his mother's house. However, he states that (1) on September 11, 2008, plaintiff delivered a copy of the Summons with Notice and Verified Complaint to a person of suitable age at his actual place of business located at 440 Park Avenue South, 10th Floor, New York, New York, where he had been working for two years, and (2) such service was followed up with another copy being mailed to him on September 22, 2008, c/o Koch Geringer & Co., LLP, at said address, and does not challenge the manner of service.

Claiming that the delay between filing and service would prejudice his ability to respond to plaintiff's charges, Geringer contends that plaintiff has failed to demonstrate, as required by the statute, good cause for the delay, or that the interests of justice support an extension of time, in order to validate service.

Plaintiff's present attorney details the efforts made to effect service on Geringer, which followed, after judicial intervention, his obtaining the court file from prior counsel on February 21, 2008. After learning that said file provided no information on Geringer's whereabouts, the pleadings were served at Geringer's mother's address. He further represents that he made several unsuccessful attempts to locate Geringer's home address and place of work through the Office of the Professions of the New York State Department of Education. During the summer of 2008, he received information as to a possible place of employment which proved false. Finally, during the summer of 2008, after learning that Geringer might be employed at the accounting firm of Konigsberg, Wolf & Co., PC, he effected service there.

For his part, Geringer generally denies "the accuracy" of plaintiff's factual allegations contained in the complaint; acknowledges that after October 2001, he spent his time outside the country, primarily in Panama, but denies that he kept his relocation to Panama secret; claims he was threatened by plaintiff and his family in July and August of 2002; does "not recall" the "Affidavit of Confession of Judgment" and does "not believe" it bears his signature; and claims he survived an eight-story fall from his apartment which required multiple surgeries and left him with permanent injuries on the same day that he transferred to another the Panama property that he acknowledges he agreed to transfer to plaintiff "in satisfaction of the loan." He states that he was not aware in 2003 that Lonuzzi had commenced a lawsuit naming him as a defendant and further alleges that, to his knowledge, counsel did not represent him in connection with the present lawsuit until 2008.

Geringer further alleges that he returned to New York in 2005, at which time, using his mother's Brooklyn address, he obtained a "New York State identification card." He states that he lived at his mother's during 2005 and early 2006, but that "[b]y 2008, I had not been living at this address for approximately 2 years, although it appears that I did not update the address on my driver's license." He charges that in failing to locate him prior to 2008, plaintiff was less than diligent.

In reply to defendant's papers, plaintiff challenges Geringer's factual allegations, disputes his claim that he could easily be located, and rejects any suggestion that defendant would be prejudiced were the court to grant plaintiff the relief sought.

Service of the summons and complaint, summons with notice . . . shall be made within one hundred twenty days after [their] filing . . . 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 (emphasis added).

Thus, the statute provides the court with two separate and distinct standards with which to consider whether an extension of time to serve is warranted: the court can grant such relief upon a showing by the plaintiff that "good cause" exists for his or her failure to properly and timely serve [*5]the defendant, or can, in its discretion, determine that such relief would be "in the interest of justice" (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). While the good cause standard requires a showing that reasonable diligence was employed to effectuate service or that the plaintiff was somehow unable to serve defendant, the latter standard provides the court with more flexibility, and entails "a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" (id. at 105). Thus, "[u]nlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter," but diligence, or lack thereof, along with any other relevant factor, may be considered by the court in determining whether to grant an extension of time in the interest of justice (id. at 105-106). Such other factors favoring the grant of an extension have been held to include the meritorious nature of plaintiff's cause of action (id.), whether the statute of limitations has expired (see Brown v Wilson Farms, Inc., 52 AD3d 1324 [2008]), whether service that was timely made during the 120-day period was subsequently found to have been defective (see Chiaro v D'Angelo, 7 AD3d 746, [2004]), and whether the defendant was prejudiced (id.).

In the instant case, the interests of justice clearly support denial of defendant's motion for dismissal of the complaint, and an extension of the 120-day period so as to validate service, nunc pro tunc, as requested in plaintiff's cross motion. Plaintiff has established that the action was commenced within the applicable statute of limitations and that service was effected upon the other defendants within the statutory time frame (see Przespolewski v Elderwood Health Care at Linwood, 55 AD3d 1327, 1328 [2008]). Geringer was initially served, albeit defectively, within six days of the filing of the summons with notice, well within the 120 day period (see Robles v Mirzakhmedov, 34 AD3d 554, 555 [2006]). It is essentially undisputed that, shortly after the events at issue, defendant Geringer removed himself from the jurisdiction and from the United States, thereby evading service. Moreover, plaintiff's factual allegations support a finding that he has a meritorious claim against defendant, and that he made diligent efforts to serve defendant shortly after learning through public records that defendant, who had left New York for an extended period, had returned.

Defendant's arguments in opposition to the relief sought by plaintiff are unavailing, and his assertion that he will suffer prejudice if forced to defend against plaintiff's lawsuit is unconvincing. His unsupported characterization of the monies plaintiff turned over to him as a loan that was used to fund an unsuccessful effort to develop property in Panama, raised for the first time in his reply papers, does no more than establish a factual alternative that in no way addresses the factors required to be considered in applying the "interests of justice" standard. Similarly, his averments, set forth in support of his contention that plaintiff was less than diligent in attempting to serve him and that his whereabouts during the relevant years were easily ascertainable, are sharply disputed by plaintiff's detailed accounts of the efforts undertaken to locate him and by defendant's own admissions.

Geringer's stated inability to recall signing the Confession of Judgment, and assertion that his signature is a forgery, is disputed by the sworn affidavit of John Lonuzzi, who states that he was present at the meeting in New York City, and that he witnessed defendant sign said document. Additionally, the veracity of Geringer's statement that he only became aware of the present lawsuit in 2008 after the "attempted" service of the pleadings on him at his mother's house, is undermined by (1) his own dubious statement admitting awareness, subsequent to the mediation proceedings in 2003, of Lonzuzzi's claims, but that he was nevertheless unaware that he had been named as a defendant in a lawsuit commenced by Lonuzzi, and (2) his own attorney's somewhat vague, but [*6]nevertheless inconsistent statement, that he (defendant's attorney) first learned of the instant lawsuit when contacted by codefendants' counsel in late 2007 or early 2008, though counsel admits to having represented Geringer at the 2003 mediation of several other matters referred to him by counsel for the co-defendants.

Finally, the court rejects, as speculative and conclusory, Geringer's perfunctory allegations of prejudice.

Although it would be appropriate to deny relief where the record demonstrates a failure to diligently attempt to effect service, promptly seek an extension of time to effect service, or attempt to show the existence of a meritorious cause of action (see Winter v Irizarry, 300 AD2d 472 [2002]), here the court finds that plaintiff has made a sufficient showing of a meritorious claim, reasonable efforts to promptly serve, actual awareness of the claim on the part of defendant even before commencement of suit, and deliberate efforts by Geringer to avoid service by removing himself from the jurisdiction, so as to establish entitlement to an extension of the 120-day period in the interests of justice. Accordingly, the court denies defendant's motion for dismissal of the complaint, and, finding September 11, 2008 as the date service was effected, grants plaintiff's cross motion for an order deeming said service timely.

The foregoing constitutes the decision and order of the court.

ENTER,

J.S.C.