Civil Court of the City of New York, Bronx County, January 4, 2019

Rubin & Rothman, LLC for plaintiff.

In this action for breach of contract arising from defendants' alleged failure to pay sums borrowed by them for the purchase of a vehicle, plaintiff moves for an order granting it leave to file affidavits of service nunc pro tunc. Plaintiff contends that because it could not verify defendant Luis Zeno's address it failed to serve him within the 120-day period prescribed by CPLR 306-b. Thus, plaintiff seeks leave to file a belated affidavit of service pursuant to CPLR 2001 and 2004. The instant motion is unopposed.

For the reasons that follow hereinafter plaintiff's motion is granted.

The complaint, filed on September 21, 2017, alleges that pursuant to a retail installment agreement, plaintiff loaned defendants money for the purchase of an automobile. Defendants agreed to repay the sums loaned in installments and have failed to do so. Thus, plaintiff, presumably on a cause of action for breach of contract, seeks judgment in the amount $10,996.48, said sums due and owing on the loan.

Plaintiff's motion is treated as one made pursuant to CPLR 306-b and granted. Significantly, plaintiff establishes good cause for its failure to timely serve Zeno in that it had an incorrect apartment number for him.

CPLR 306-b states,

"Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen [*2]days after the date on which the applicable statute of limitations expires. 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."

As per the clear language of the statute, failure to serve a defendant with process within 120 days of filing same warrants{**62 Misc 3d at 946} dismissal of the action (Page v Marusich, 30 AD3d 871, 873 [3d Dept 2006]; Security Mut. Ins. Co. v Black & Decker Corp., 255 AD2d 771, 772 [3d Dept 1998]; Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146 [3d Dept 1994]). However, while the court has the ability to dismiss an action pursuant to CPLR 306-b, it also has the power to grant a plaintiff an extension of time to serve a summons and complaint beyond the 120-day period (Page at 872-873). A motion to extend the time to serve a summons and complaint will be granted if a plaintiff can establish good cause for the delay in effectuating service or if the interest of justice demands the same (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]). The statute promulgates two separate standards for extension of time to serve, each having different elements (id. at 104). A plaintiff seeking to extend the time to serve upon good cause shown must demonstrate that the delay in serving occurred despite an exercise of due diligence (id. at 105). Generally, an exercise of reasonable diligence in attempting to effectuate service will constitute good cause under the statute (Emigrant Bank v Estate of Robinson, 144 AD3d 1084, 1085 [2d Dept 2016] ["Contrary to the Robinson defendants' contentions, the plaintiff's submission of detailed affidavits of due diligence, affidavits of attempted service, and evidence of various records searches demonstrated its substantial efforts to locate and serve the Robinson defendants, and established the requisite reasonable diligence to warrant the granting of an extension for good cause"]). By contrast, a plaintiff seeking an extension of the time to serve in the interest of justice must usually proffer enough facts to demonstrate that the interests of justice demand an extension. To be sure,

"[t]he interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties . . . the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Leader at 105-106).

Thus, the interest of justice standard usually requires a careful judicial analysis of the factual setting of a particular case, the competing interests proffered by the parties (id. at 105-106). Thus, the court, in making its determination, may consider factors{**62 Misc 3d at 947} such as, the expiration of the applicable statute of limitations, whether the action has merit, the length of the delay involved, prejudice, and the promptness of plaintiff's request for an extension (id. at 105-106). Unlike the good cause standard, due diligence may be considered in an interest of justice analysis, but unlike a good cause analysis, due diligence is not dispositive (id. at 104).

Prejudice is the impairment of defendant's ability to defend an action on the merits (Slate v Schiavone Constr. Co., 10 AD3d 1, 4 [1st Dept 2004]; Busler v Corbett, 259 AD2d 13, 16 [4th Dept 1999]); it does not result from the loss of a procedural or technical advantage (Slate at 4; Busler at 16). Significantly, the expiration of the statute of limitations, does not, by itself, constitute prejudice (Slate at 5).

In Leader, the Court of Appeals discussed three lower court opinions which were the subject of that particular appeal and affirmed all three on the reasoning employed by the lower courts. In the first case discussed, Leader, the Court found that an attorney's ignorance of the law, law office failure, and lack of reasonable diligence in effectuating service did not constitute good cause for purposes of CPLR 306-b, but that the interest of justice standard, a more flexible standard, could, if no prejudice results, excuse mistakes and oversight which result in the failure to timely serve process (Leader at 102). In the second case, Scarabaggio v Olympia & York Estates, the Court, affirming the grant of plaintiff's motion to extend the time to serve process, held that when extending the time to effectuate service pursuant to CPLR 306-b, the court could consider any relevant factor in making its determination and no one factor is dispositive (Leader at 102). In that case, the Court found that the process server's failure to apprise counsel of the inability to serve process upon the defendant was, in the absence of prejudice, excusable in the interests of justice (Leader at 102). In the last case, Hafkin v North Shore Univ. Hosp., the Court found that an extension of time to serve process was not in the interest of justice when plaintiff offered no excuse for his failure to timely serve the defendant and the defendant had no notice of the action for almost three years, such that the prejudice which would befall defendant was great (Leader at 103).

In Goldstein v Columbia Presbyt. Med. Ctr. (1 AD3d 188, 188 [1st Dept 2003]), the Court granted plaintiff's request to extend the time to serve process in the interest of justice after concluding that defendants failed to show prejudice and had actual notice{**62 Misc 3d at 948} of the action. In Wideman v Barbel Trucking (300 AD2d 184, 185 [1st Dept 2002]), the Court found that an extension of time to serve process was warranted, absent good cause shown but in the interests of justice, even though plaintiff failed to properly serve defendant and exercise due diligence. The Court concluded that in applying the interest of justice standard, the court can accommodate late service due to mistake, confusion, or oversight (id. at 185). Notably, a plaintiff's failure to offer any excuse for failing to timely serve has resulted in a denial of any extension of time to serve process (Lipschitz v McCann, 13 AD3d 417, 418 [2d Dept 2004]).

It is well settled that compliance with CPLR 306-b requires service of the summons and complaint actually filed with the court (Page at 873; Della Villa v Kwiatkowski, 293 AD2d 886, 887 [3d Dept 2002]). Moreover, compliance with CPLR 306-b mandates service of process, even amended process, within 120 days of the original commencement of the action (Elm Mgt. Corp. v Sprung, 20 Misc 3d 1141[A], 2008 NY Slip Op 51821[U] [Sup Ct, Kings County 2008]). Thus, the failure to serve process upon a defendant within 120 days of the commencement of an action cannot be cured by amending the complaint, filing the same, and serving defendant within 120 days thereof (id.).

In support of the instant motion, plaintiff asserts, by counsel, that defendant was not served until January 5, 2018, more than 120 days after the filing of the summons and complaint. Plaintiff further states that when attempts to serve Zeno within the statutory period were attempted at the address plaintiff had on file, service was recalled because the apartment where service was effectuated was incorrect. Thus, plaintiff undertook an investigation which revealed that Zeno's apartment number was different than the address plaintiff had on file. Thereafter, on January 5, 2018, defendant was served with the summons and complaint.

Plaintiff submits an affidavit of service which indicates that on January 5, 2018, Zeno was served with process when the summons and complaint were left at his home with a resident.

Based on the foregoing, plaintiff establishes entitlement to relief pursuant to CPLR 306-b not, as urged, CPLR 2001 and 2004, or 305 (c). To be sure, CPLR 305 (c) allows a party to amend the caption or the summons and verified complaint in a proceeding and authorizes the court to "allow any summons or proof of service . . . to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." {**62 Misc 3d at 949}CPLR 2001 further states that at any stage of an action, a court may permit a mistake, omission, defect or irregularity to be corrected upon such terms as may be just. In allowing such amendments, the relevant inquiry is whether the correct party was actually served, whether the amendment would prejudice the party in any way, and whether the correct party was on notice that despite the mistake in the caption or summons or complaint, he, she or it was the entity or person against whom the suit was brought (Medina v City of New York, 167 AD2d 268, 270 [1st Dept 1990] [the Court, relying on CPLR 305 (c) and 2001, granted plaintiff leave to amend, inter alia, the caption to name the correct defendant when no prejudice would result therefrom]; see Fink v Regent Hotel, 234 AD2d 39, 41 [1st Dept 1996] ["It is well settled that an application to amend the caption to reflect the true name of the defendant should be granted where, as here, the designated entity was the intended subject of the law suit, knew or should have known of the existence of the litigation against it, and will not be prejudiced thereby"]; Pinto v House, 79 AD2d 361, 364 [1st Dept 1981]; Ober v Rye Town Hilton, 159 AD2d 16, 19-20 [2d Dept 1990]). CPLR 2004 states

"[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."

CPLR 2004 by its express terms does not extend times where other statutes prescribe mechanisms for extensions of the times prescribed therein (Matter of Powers v Foley, 25 AD2d 525, 525 [2d Dept 1966] ["The board is not bound to continue error in its interpretation of the law governing its powers. Nor does CPLR 2004 permit an extension of time to be granted to the petitioner; it applies to extensions of time for the doing of acts in actions and proceedings and not for the doing of acts which are substantive in character and provided for under other statutes"]).

Here, what plaintiff seeks is not an amendment. As such, CPLR 305 (c) is inapplicable. Moreover, in asking that the court deem the affidavits of service filed nunc pro tunc, what plaintiff seeks is not leave to cure a mere ministerial or trivial mistake or omission such that relief could be accorded by CPLR 2001. Instead, plaintiff seeks to have the court enlarge the time prescribed by CPLR 306-b because it failed to serve Zeno{**62 Misc 3d at 950} within the 120 days prescribed therein. Because an extension of that time period is prescribed by CPLR 306-b, CPLR 2004 provides plaintiff no relief either (Powers at 525).

Nevertheless, a motion to extend the time to serve a summons and complaint will be granted if a plaintiff can establish good cause for the delay in effectuating service or if the interest of justice demands the same (Leader at 104). A plaintiff seeking to extend the time to serve upon good cause shown must demonstrate that the delay in serving occurred despite an exercise of due diligence (id. at 105). Generally, an exercise of reasonable diligence in attempting to effectuate service will constitute good cause under the statute (Emigrant Bank at 1085).

Here, plaintiff demonstrates good cause warranting the extension of the relevant time period because it establishes that the delay in serving Zeno was the result of not having his [*5]apartment number. Thereafter, plaintiff undertook an investigation, discovered Zeno's apartment number and served him. Thus, in attempting to serve Zeno, plaintiff utilized due diligence. It is hereby ordered that the time to serve Zeno with process be extended through January 5, 2018, and that the affidavit of service filed by plaintiff be deemed timely filed nunc pro tunc.