Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of plaintiff 342 Eldert LLC (hereinafter Eldert), filed on October 31, 2019, under motion sequence one, for an order: (1) extending its time to effectuate service of process of the summons and complaint upon defendant Yashua Ank Bey El (hereinafter Ank Bey El) pursuant to CPLR 306-b; (2) deeming service upon all defendants timely, nunc pro tunc upon good cause shown or [*2]in the interest of justice. This motion is unopposed.

Notice of Motion

Affirmation in Support

Exhibits A-E

On May 16, 2019, Eldert commenced the instant action against the defendants seeking, among other things, to vacate the satisfaction of a mortgage by electronically filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's Office (hereinafter KCCO). On May 28, 2019, Jaspan Schlesinger, LLP filed a notice of appearance as attorneys for defendants Fannie Mae and Capital One Multifamily Finance LLC (hereinafter Capital One).

Eldert's complaint contains fifty-two allegations of fact in support of four causes of action. The first cause of action is for declaratory judgment, the second cause of action is to vacate the satisfaction of an allegedly fraudulent mortgage, the third cause of action is for fraud, and the fourth cause of action is for injurious falsehood.

Eldert alleges that it is the owner of a property located at 342 Eldert Street, Brooklyn, New York (hereinafter subject premises). On October 7, 2010, Eldert executed and recorded a mortgage (hereinafter First Mortgage) on the subject premises in favor of Beech Street Capital LLC (hereinafter Beech) in the amount of $13,090,000.00. Beech, later, assigned its interest in the First Mortgage to Fannie Mae. On July 27, 2005, Capital One recorded a mortgage executed by Eldert on the subject premises in the amount of $3,200,000.00 (hereinafter Second Mortgage).

On December 18, 2018, defendants Estate of Yashua Ank Bel El Holding Company LLC (hereinafter YABEH), Cheryl Mabry (hereinafter Mabry), and Ank Bey El are alleged to have executed fraudulent mortgage satisfaction documents for the subject premises. Eldert contends that Mabry was not an agent, officer, or employee authorized to act on the behalf of Eldert, Fannie Mae or Capital One. Eldert further alleges that it sustained damages as a result of YABEH, Mabry and Ank El Bey's actions.

Eldert's motion papers consist of a notice of motion, an affirmation of counsel and five annexed exhibits labeled A through E. Exhibit A is a copy of plaintiff's summons and complaint. Although not denominated as a verified complaint, the verification page is signed by Issac Jacobs, a member of Eldert, who affirmed before a notary to the facts within the complaint. Exhibit B is a notice of appearance by Jaspan Schlesinger LLP as counsel to Fannie Mae and Capital One. Exhibit C is an affidavit of service upon YABEH dated July 1, 2019. Exhibit D is an affidavit of service upon defendants YABEH, Mabry and Ank Bey El dated November 1, 2019. Exhibit E is an email correspondence, dated August 23, 2019, between Joseph Matos, process server, and Carleen Freckleton, executive assistant to plaintiff's counsel.

There is no opposition to the motion.

By the instant motion, Eldert seeks an extension of time to serve Ank Bey El pursuant to CPLR 306-b. Additionally, Eldert requests that service upon the other defendants in the action be deemed timely.

An extension of time for service is a matter within the court's discretion (Butters v Payne, 176 AD3d 1028, 1028 [2nd Dept 2019] citing Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 162 AD3d 742 [2nd Dept 2018]). Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (JPMorgan Chase Bank v Kothary, 178 AD3d 791, 792 [2nd Dept 2019] citing CPLR 306—b). If service is not made upon a defendant within the time provided, the court, upon motion, shall dismiss the action without prejudice as to that defendant or extend the time for service upon good cause shown or in the interest of justice (CPLR 306-b).

To establish the requisite good cause, the movant must demonstrate reasonably diligent efforts in attempting to effect service (see Butters, 176 AD3d at 1028). Good cause can be shown by providing affidavits of due diligence, affidavits of attempted service, and evidence of record searches made in an attempt to effect service (Wilmington Sav. Fund Socy., FSB v James, 174 AD3d 835 [2nd Dept 2019]).

Conversely, the interest of justice standard is broader and more flexible, it does not require the movant to demonstrate diligence (see Butters, 176 AD3d at 1028; see also Mighty v Deshommes, 178 AD3d 912 [2nd Dept 2019]). This standard allows the court to consider any other relevant factors including the expiration of the statute of limitations, 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 (Mighty, 178 AD3d at 912).

In the instant motion, Eldert does not annex any affidavits of service to demonstrate its attempts to serve Ank Bey El. The motion is supported only by an affirmation of its counsel, who describes the firm's electronic search for an address for Ank Bey El and an email between a process server and the firm's executive assistant. Consequently, Eldert has not demonstrated good cause to extend its time to serve Ank Bey El.

Notwithstanding the failure to establish good cause for an extension, the court must consider the interest of justice standard of CPLR 306—b (Deutsche Bank Natl. Tr. Co. v Campbell, 172 AD3d 1310, 1312 [2nd Dept 2019] citing Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2nd Dept 2009]). Here, Eldert made a timely request to extend service of process upon Ank Bey El. Eldert's attorney affirmation avers that an extension is required due to its difficulty in finding a current address for Ank Bel El even after using the Lexis Nexis Accurint online search. In this instance, the delay is not particularly egregious and the statue of limitations has not expired. Furthermore, there is nothing in the complaint affirmed by Eldert's member to suggest a lack of merit to complaint. Accordingly, Eldert has established that its time to serve Ank Bey El should be extended in the interest of justice (see Bumpus, 66 AD3d at 26).

The second branch of Eldert's motion seeks leave to deem the other defendants in the action timely served. Although the notice of motion seeks leave to deem all other defendants as timely served, the affirmation of Eldert's counsel only addresses service upon Mabry. On August 5, 2019, the process server effected service upon an adult, of suitable age and discretion, at Mabry's residence. On August 6, 2019, the process server then mailed a copy of the commencement papers to Mabry at the exact same address. However, the affidavit of service was not filed. It is well established that service made pursuant to CPLR 308 (2) is completed ten days after the proof of service is filed with the clerk of the court (see CPLR 308 [2]).

Nevertheless, the failure to file proof of service is a procedural irregularity, not a [*3]jurisdictional defect (First Fed. Sav. & Loan Assn. of Charleston v Tezzi, 164 AD3d 758, 760 [2nd Dept 2018] citing Khan v Hernandez, 122 AD3d 802, 803 [2nd Dept 2014]). Such irregularities may be cured by motion or sua sponte by the court in its discretion to deem an affidavit of service timely filed (CPLR 2004). In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (First Fed. Sav. & Loan Assn. of Charleston, 164 AD3d at 760 citing CPLR 2001).

In the instant matter, Eldert admits that it did not file proof of service with the KCCO. However, Eldert has demonstrated its diligence in effecting service by completing two out of three of the steps required by CPLR 308 [2] (see Butters, 176 AD3d at 1028). Furthermore, the instant motion is unopposed, thus there is no indication of unfair prejudice to the defendants. Accordingly, plaintiff's service upon Mabry is deemed timely.

The motion by plaintiff 342 Eldert LLC, pursuant CPLR 306-b, for an order extending its time to effectuate service of process of the summons and complaint upon defendant Yashua Ank Bey El is granted. Plaintiff's time to serve defendant Yashua Ank Bey El with the summons and complaint is extended until August 7, 2020.

The motion by plaintiff 342 Eldert LLC for an order deeming service upon defendant Cheryl Mabry timely is granted to the extent that defendant Cheryl Mabry's time to serve an answer is extended until thirty days after service upon the defendant of a copy of this decision and order with notice of entry.

The foregoing constitutes the decision and order of this Court.