Defendant C. L. moves to dismiss this action for divorce under CPLR 3211 (a) (8) for lack of personal jurisdiction based on untimely service of process. Plaintiff C. L. opposes the motion and cross-moves pursuant to CPLR 306-b for an extension of time to serve. Defendant opposes the cross motion.

The parties were married on March 27, 2004, and there are three unemancipated children of the marriage: C1, C2 and C3.

Plaintiff commenced this action on June 28, 2023 through the electronic filing of a Summons with Notice and Verified Complaint (see NYSCEF Doc No. 1 ["Initial Pleadings"]). It is undisputed that defendant never was served with the Initial Pleadings.

On June 3, 2024, plaintiff filed an Amended Summons with Notice and Amended Verified Complaint (see NYSCEF Doc No. 2 ["Amended Pleadings"]). Defendant was served with the Amended Pleadings on March 27, 2025 (see NYSCEF Doc No. 3).

On April 15, 2025, defendant made a limited appearance for the purpose of moving to [*2]dismiss the case under CPLR 3211 (a) (8) for untimely service. In response, defendant cross-moved for an extension of time to effectuate service, nunc pro tunc.

CPLR 306-b requires service of process to be completed within 120 days from the commencement of an action, absent an order granting an extension of time to serve for good cause shown or in the interest of justice. A defendant who is not properly served within the 120-day period may move to dismiss the case for lack of personal jurisdiction (see CPLR 3211 [a] [8]; Joseph II. v Luisa JJ., 201 AD3d 43, 49 [3d Dept 2021]).

Here, plaintiff served defendant with the Amended Pleadings on March 27, 2025, which was 638 days after he commenced the action through the filing of the Initial Pleadings, and 297 days after filing the Amended Pleadings. Defendant has thus established that plaintiff did not complete service within the statutory 120-day period (see Joseph II., 201 AD3d at 49).

Plaintiff relies on the affirmation of his counsel to oppose dismissal and support his cross motion for an extension of time (see NYSCEF Doc No. 20 ["Opp Aff."]). While not disputing "that this matter has been long stagnant," counsel maintains that there were "repeated efforts to serve the Defendant, which were repeated[ly] thwarted or evaded by [her]" (id., ¶ 6).

"Shortly after the initial filing of this matter, the Defendant's father became ill and was hospitalized. The Plaintiff declined to have the Defendant served at this time due to the emotional weight of circumstances, and out of respect to the Defendant and her family" (id., ¶ 7). But "Defendant was made aware of the Plaintiff's filing through their communications. [Plaintiff] even wrote [Defendant] a check so [she] could . . . hire her own counsel in this matter," and "[t]he intention was that [defense] counsel would notify [plaintiff's counsel] to effectuate service. However, no [such] counsel was hired" (id., ¶ 8).

Plaintiff's counsel further affirms that "attempts at personal service were made," but "Defendant refused to come to the door, and on one occasion turned on the sprinkler system as the process server was leaving the home" (id., ¶ 9). "After these failed attempts at service, on or around November 4, 2024, the Defendant agreed to pick up the pleadings at the law office of [plaintiff's counsel]," but "never actually came to pick them up" (id., ¶ 10).

The Court finds that the affirmation of plaintiff's counsel does not provide an adequate basis for successfully opposing defendant's motion or obtaining an extension of time to complete service through the cross motion.

Initially, plaintiff has not submitted an affidavit or affirmation, and plaintiff's counsel has not demonstrated her personal knowledge as to the bulk of the factual matter to which she affirms (see Deutsche Bank Natl. Tr. Co. v Campbell, 172 AD3d 1310, 1312 [2d Dept 2019]).

In any event, an extension of time to serve is warranted only for good cause shown or in the interest of justice (see CPLR 306-b). It is well settled that "good cause" for an extension does not exist where, as here, no "effort was made to timely serve the defendant[] during the 120-day period following the filing of the summons and complaint" (Jung Hun Cho v Bovasso, 166 AD3d 868, 870 [2d Dept 2018]; see Johnson v Concourse Vil., Inc., 69 AD3d 410, 410 [1st Dept 2010]). Thus, plaintiff relies solely on the interest of justice prong (see Opp Aff. at 3-4).

"If good cause for an extension is not established, courts must consider the 'interest of justice' standard of CPLR 306-b, which requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" (Wells Fargo Bank, NA v Barrella, 166 AD3d 711, 713 [2d Dept 2018] [internal quotation marks and citations omitted], lv denied 33 NY3d 908 [2019]). To this end, "'the court may consider diligence, or [*3]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'" (Deutsche Bank Natl. Tr. Co. v Campbell, 172 AD3d 1310, 1312 [2d Dept 2019], quoting Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). "Whether to grant such an extension rests within the trial court's discretion" (Pierce v Village of Horseheads Police Dept., 107 AD3d 1354, 1356-1357 [3d Dept 2013] [citations omitted]).

Plaintiff focuses on three of these factors in his cross motion: (i) "Plaintiff has made several attempts at service on the Defendant," who actively "dodged service[]" (Opp Aff., ¶ 17); (ii) "[u]pon information and belief, the Defendant was at all times aware that an action had been filed" (id., ¶ 18); and (iii) "granting the Defendant's motion to dismiss would unjustly benefit [her]" (id., ¶ 19).

First, plaintiff alleges that he made "several attempts" to effectuate service, and defendant "regularly avoided service" (Opp Aff., ¶¶ 17, 19). However, the only competent proof adduced by plaintiff is an affidavit merely evidencing a single attempt at service (see NYSCEF Doc No. 22). In that affidavit, a process server attests to an attempt to serve the Initial Pleadings on July 2, 2024 at 7:00 a.m., but defendant "refused to come to the door" (id.).^[FN1] Proof of only one attempt to serve the Initial Pleadings, more than one year after their filing, does not adequately support the attestation of plaintiff's counsel that there were multiple attempts to serve defendant.

Plaintiff's counsel further affirms that defendant failed to appear in her office in November 2024 to accept service (see Opp Aff., ¶ 10). But this alleged "agreement" by defendant to accept service occurred 17 months after the filing of the Initial Pleadings and 5 months after the filing of the Amended Pleadings. And, in any event, plaintiff was obliged to properly and timely serve defendant, regardless of whether she chose to cooperate.^[FN2]

Next, while defendant's actual awareness of the suit is a factor in the interest-of-justice analysis (see e.g. Dhuler v ELRAC, Inc., 118 AD3d 937, 939 [2d Dept 2014]), it has not been adequately established through an attestation of counsel made solely upon "information and belief" (Opp Aff., ¶ 18). Moreover, the record lacks a proper foundation for the $10,000 check that plaintiff wrote to defendant in October 2023 (see id., ¶ 8), and, in any event, there is no indication that the check was for "counsel fees" (NYSCEF Doc No. 21). The memo line states only that the check was a "Distribution" (id.), and defendant avers that the parties "discussed that [this] money was for [her] . . . personal expenses and [the] children's expenses. [Defendant] had [*4]no idea that [plaintiff] had already commenced a divorce" (Reply Aff., ¶ 7 [b]).

Finally, plaintiff maintains that dismissal "would unjustly benefit the Defendant due to her being able to receive the benefit of the Plaintiff's continued investment into his business, his further investment into his retirement account, and increase to the income cap for purposes of calculating spousal maintenance" (Opp Aff., ¶ 19). To the contrary, the Court finds that defendant and, by extension, the children would be prejudiced if the cross motion were granted.

Defendant's unrebutted testimony shows that plaintiff has been the sole earner as the owner of (redacted) Inc., which has grown significantly since this action was commenced two years ago (see NYSCEF Doc No. 6 ["Moving Aff."], ¶¶ 10-11). During this multi-year period, plaintiff "has been creating new LLCs and businesses" (Reply Aff., ¶ 9; see NYSCEF Doc Nos. 25-27), and apparently "purchased additional vehicles and contributed significantly to his retirement account" (Moving Aff., ¶ 12). For her part, defendant has remained a stay-home parent, tending to the children's needs without plaintiff's assistance (see id., ¶¶ 7, 10).

Although plaintiff was entitled to "stop the clock" on the accrual of marital assets through the commencement of this action in June 2023 (see DRL § 236 [B] [1] [c]; Gillman v Gillman, 139 AD3d 667, 671 [2d Dept 2016]), the commencement of a divorce action comes with countervailing obligations, including the duty to promptly effectuate service of process, thereby promoting an expeditious separation of the parties' legal and financial ties.

In the Court's view, allowing plaintiff to proceed with a June 2025 divorce case with a June 2023 commencement date under the circumstances presented here would unfairly deprive defendant of the opportunity to obtain her equitable share of assets that should be considered marital in nature and potentially saddle defendant with responsibility for debts incurred during the period of plaintiff's protracted delay.

For all of the foregoing reasons, the Court finds, in the exercise of discretion, that the interests of justice do not warrant granting plaintiff an extension of time to complete service. Therefore, defendant's motion to dismiss for lack of personal jurisdiction should be granted (see Slate v Schiavone Constr. Co., 4 NY3d 816, 817 [2005]; A.K. v T. K., 150 AD3d 1091, 1093 [2d Dept 2017]; Alexander v Alexander, 32 AD3d 524, 524 [2d Dept 2006]; Fotiadis v Fotiadis, 18 AD3d 699, 700 [2d Dept 2005]).

Accordingly, it is

ORDERED that defendant's motion to dismiss is granted and plaintiff's cross motion for an extension of time to effectuate service is denied; and it is further

ORDERED that this action hereby is dismissed for lack of personal jurisdiction.

This constitutes the Decision & Order of the Court, the original of which is being uploaded to NYSCEF for entry by the Albany County Clerk. Upon such entry, counsel for defendant shall promptly serve notice of entry on all parties entitled to such notice.