Upon the foregoing papers, the motion for summary judgment (No. 1982-001) of defendant The City of New York (hereinafter the "City") is denied; plaintiff's cross motion (No. 2813-002) for an extension of the time to effect service pursuant to CPLR 306-b and 3012(d) is granted.

This matter arises out of a trip and fall which occurred on February 24, 2011, on the sidewalk in front of 635 Bay Street, Staten Island, New York ^[FN1] . It is undisputed that the Notice of [*2]Claim which was served timely upon the City on April 11, 2011, described the accident location as "the roadway at 635 Bay Street Staten Island New York" where, according to the notice, plaintiff "was caused to fall through a manhole and [to] be injured by the recklessness and carelessness of the City" (see City's Exhibit A). Moreover, it is conceded that four months later, at his General Municipal Law §50-h hearing, plaintiff revised the identification of the accident location as the sidewalk in front of 635 Bay Street. To the extent relevant, plaintiff's verified complaint referred to the accident location as "the aforesaid thoroughfare and the sidewalk portions in front of and adjacent to [635 Bay Street]" (see City's Exhibit C, paras. 8 - 15).

Plaintiff timely commenced this action against the City on May 8, 2012, by the filing of his Summons and Complaint with the Richmond County Clerk (id). However, personal service was not effected upon the City until almost two years later, on or about April 28, 2014. Consequently, in its May 19, 2014 answer to the complaint, the City asserted as an affirmative defense that the statute of limitations had run (see General Municipal Law §50-i). The City now moves to dismiss this action pursuant to CPLR 3211(a)(8) on the ground, inter alia, that the Summons and Complaint were not timely served under CPLR §306-b, thereby resulting in a lack of personal jurisdiction ^[FN2] (see City's Exhibit D).

In support of its application, the City claims that it has been deprived of its statutory right to investigate the essential facts and circumstances of the accident by the failure to articulate its exact location due to plaintiff's delay in serving the complaint. In addition, the City asserts that the inconsistencies in identifying the accident site as memorialized in the Notice of Claim (roadway), plaintiff's testimony at his General Municipal Law §50-h hearing (sidewalk) and, eventually, in the Verified Complaint (thoroughfare and sidewalk) have irretrievably prejudiced the City in its investigative process.

In his cross motion, plaintiff asks this Court for the entry of an order pursuant to CPLR 306-b and CPLR 3012(d), extending his time to serve the City or to compel the City to accept the admittedly untimely Summons and Complaint. In opposing the City's motion, plaintiff claims as "good cause" for the delay in service, the City's "refus[al] to accept [the summons and complaint]...due to an issue with legibility of the index number, which as a result of misfiling did not get addressed promptly" (see Plaintiff's Affirmation in Support, para 5). In addition, plaintiff argues that the City waived its right to dismissal of the matter pursuant to CPLR 3211(a)(8) by [*3]serving 33 pages of discovery demands along with its answer (but see CPLR 3120).

As previously indicated, plaintiff's motion is granted and defendant's cross motion is denied.

In a similar case, Sutter v. Reyes (60 AD3d 448), the First Department, relying on Leader v. Maroney, Ponzini & Spencer (97 NY2d 95) affirmed the Supreme Court's "discretion-laden determination" to allow plaintiff an extension of time to serve the City notwithstanding a hiatus of several years between the commencement of the action and the entry of an order extending the time to serve under CPLR 306-b (id., at 449). Unlike the plaintiff in Sutter, plaintiff at bar has at least attempted to provide "good cause" for the delay in service, citing, inter alia, the City's refusal to accept service of the summons and complaint because the index number was illegible. However, plaintiff's failure to re-attempt service following the City's rejection (cf. General Municipal Law §50-e[c], [d]) or to move for an extension of the time to serve under CPLR 306-b for nearly two years, can hardly be regarded as reasonable or diligent (id.). Hence, it is impossible to accept plaintiff's claim of "good cause". Nevertheless, as in Leader and Sutter, an extension granted in the "interest of justice" is separate and distinct from an extension premised upon "good cause", and may be granted notwithstanding plaintiff's woeful delay, particularly where, as here, the notice of claim and plaintiff's hearing testimony provided the City with "notice of the occurrence, [plaintiff's] theory of recovery and claim [of injury] well before the expiration of the statute of limitations" (id.). Accordingly, in view of the City's failure to establish, e.g., the loss of some substantial right, a prejudicial change in its position, or some significant expense incurred as a result of plaintiff's failure to timely serve the complaint, the "discretion-laden determination" of this Court rebounds to plaintiff's benefit. Neither has the City been able to demonstrate any prejudice arising from the delay in service or the delay in seeking an extension of the time to serve.

More importantly, however, it is beyond dispute that the City was timely served with a notice of claim and, four months later, obtained plaintiff's testimony at a General Municipal Law §50-h hearing. Although a question has been raised as to the precise location of plaintiff's accident, any investigation conducted by the City would have promptly revealed whether the subject manhole cover was located in the street or the sidewalk. In addition, since the latter location was described at length at the hearing, it appears that the City should have understood by that time that the error was almost certainly in the notice of claim. Tellingly, there is no allegation of duplicate manhole covers, nor is there any indication that the City ever attempted to investigate the site of plaintiff's fall (cf. Murray v. City of New York, 51 AD3d 502, lv denied 11 NY3d 703, citing Barbour v. Hospital for Special Surgery, 169 AD2d 385).

Under these circumstances, "a careful judicial analysis of the factual setting of this case and a balancing of the competing interests presented by the parties" (Leader v. Maroney, Ponzi & Spencer, 97 NY3d at 105-106), favors the denial of defendant's motion and the granting of plaintiff's cross motion.

Accordingly, it is

ORDERED, that defendant's motion for summary judgment and dismissal of the complaint is denied; and it is further

ORDERED, that plaintiff's cross motion for an order extending its time to affect service upon defendant the City of New York is granted; and it is further

ORDERED, that the complaint in the form annexed to the papers submitted in support of plaintiff's cross motion (Plaintiff's Exhibit A) is deemed served; and it is further

ORDERED, that the parties shall appear for a preliminary conference before this Court on December 9, 2014 at 9:30 a.m.

E N T E R,

J. S. C.