This action for breach of contract and a declaratory judgment is brought by plaintiff Prime Case Funding, L.L.C. (a litigation-financing company), against defendant Anthony Farrugia (a personal-injury plaintiff who borrowed money from Prime) and defendant Donald Zolin, Esq. (Farrugia's attorney in the underlying personal-injury action).

Zolin moves under CPLR 3211 (a) (8) to dismiss for lack of personal jurisdiction due to improper service. Prime cross-moves for an extension of time to serve under CPLR 306-b. Prime's cross-motion is granted; Zolin's motion is denied as academic.

Prime contends that it properly served Zolin through leave-and-mail service under CPLR 308 (2) by delivery to a receptionist in Zolin's office suite named Sheena Simonini, followed up by the required mailing. (See NYSCEF No. 9 [affidavit of service].) It is undisputed that Prime delivered the initiating papers in the action to Simonini as claimed in the affidavit of service, and that she then gave the papers to Zolin. (See NYSCEF No. 14 at ¶¶ 5-6 [Simonini affidavit]; NYSCEF No. 10 [stipulation to extend Zolin's time to appear or respond].) In moving to dismiss, [*2]Zolin argues only that Prime did not, as claimed in the affidavit of service, send him the requisite follow-up mailing. (See NYSCEF No. 12 at ¶¶ 5-6 [Zolin affidavit].)

Zolin supports this argument through his own affidavit and that of Simonini. These affidavits explain in detail the basis for Zolin's belief that no mailing was received. (See NYSCEF No. 12 at ¶¶ 6-8; NYSCEF No. 14 at ¶¶ 5-11.) This showing suffices to rebut the presumption of proper mailing raised by the affidavit of Prime's process server, raising a factual dispute about the validity of service. (See Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717, 717 [2d Dept 2017].)

Ordinarily, therefore, the court would direct a traverse hearing to resolve this dispute. In this case, though, a traverse hearing is not required, because Prime's cross-motion establishes that Prime would be entitled in any event under CPLR 306-b to an extension of time in which to send Zolin the necessary mailed copy of the initiating papers.

CPLR 306-b provides for an extension of time to make service "upon good cause shown or in the interest of justice." In deciding extension requests under CPLR 306-b, courts consider factors such as plaintiff's diligence in trying to effect service, the length of delay in service (and the promptness of a plaintiff's request for an extension of time), whether the statute of limitations has expired, and whether the defendant would be prejudiced by the grant of an extension. (See Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001].) Here, the record reflects that within a week of filing the action, plaintiff's process server delivered a copy of the initiating papers to an appropriate recipient, who then conveyed them to Zolin (see NYSCEF No. 9; NYSCEF No. 14 at ¶¶ 6-7); and that Zolin was on actual notice of the claims against him no more than 30 days after commencement (see NYSCEF Nos. 10, 20). When Zolin raised the issue of service in his motion to dismiss, plaintiff immediately cross-moved for relief under CPLR 306-b. And Zolin has not identified any prejudice to him that would result from granting plaintiff additional time to send him the follow-up mailing of the initiating papers in this action that is required by CPLR 308 (2). In these circumstances, granting plaintiff the extension it seeks would serve the interests of justice for CPLR 306-b purposes.

Accordingly, it is

ORDERED that Prime's cross-motion for an extension of time to serve is granted; and it is further

ORDERED that Prime shall within 20 days of entry of this order mail Zolin a copy of the initiating papers in this action in the manner required by CPLR 308 (2); and it is further

ORDERED that Zolin shall serve a responsive pleading within 30 days of Prime's mailing of the initiating papers; and it is further

ORDERED that Zolin's motion under CPLR 3211 (a) (8) to dismiss is denied as academic.