Walsh Works, Inc. v JP McHale Pest Mgt. LLC

Civil Court of the City of New York, Queens County

Decided on June 4, 2026

Index No. CV-021633-24/QU

Peter F. Lane, J.

The following papers were read on defendant's motion seeking to dismiss plaintiff's complaint due to expiration of the statute of limitations and lack of personal jurisdiction (CPLR 3211 [a] [5]; [8]).

Papers Numbered

Notice of Motion, Affidavit, Exhibits, Service 1-4

Affirmation in Opposition, Exhibits, Service 5-6

Upon the foregoing papers, it is ordered that this motion is determined as follows:

Plaintiff's action seeks recovery for property damages as a result of a motor vehicle accident with defendants that occurred on September 13, 2021 in Brooklyn, New York. Plaintiff commenced this action by filing a summons with endorsed complaint on September 13, 2024. On February 18, 2025, plaintiff filed an affidavit of service of the summons and endorsed complaint on defendant Juan Antonio Prieto Ruiz, indicating that service was effectuated by substitute service and mailing performed on December 17, 2024 (CPLR 308 [2]). On April 8, 2025, plaintiff filed an affidavit of service indicating that service was effectuated on JP McHale Pest Management LLC by service on the Secretary of State on February 13, 2025 (Limited [*2]Liability Company Law § 303).

The statute of limitations for a negligence action for property damage is three years (CPLR 214 [4]). In computing the statute of limitations, the date of accrual of the action is excluded from the day from which the reckoning is made (General Construction Law § 20; see e.g. Deltoro v Ayra, 305 AD2d 628 [2d Dept 2003]; In re City of New York, 6 Misc 3d 1026 [A] [Sup Ct, Kings County 2005]; Brownstein v Schlanger, 55 Misc 2d 904 [Nassau Dist Ct, 1st Dist 1968]; Rush v Bauerle, 49 Misc 2d 595 [Sup Ct, Orange County 1966]). Thus, plaintiff had until September 13, 2024 to commence this action, and the filing of the summons with endorsed complaint on that day was timely.

Accordingly, the branch of the motion to dismiss plaintiff's action on the grounds of expiration of the statute of limitations is denied.

Turning to the branch of the motion to dismiss plaintiff's complaint for lack of personal jurisdiction, defendant argues that the summons with endorsed complaint was not served within one hundred twenty days after the commencement of the action (CPLR 306-b). In opposition, plaintiff requests an extension of time to serve the defendants, nunc pro tunc.

The affidavit of service for Juan Antonio Prieto Ruiz reflects that service and mailing of the summons with endorsed complaint was made on December 17, 2024, which is within the time limit set forth in CPLR 306-b. Defendant's argument that the filing of the affidavit of service after expiration of the one hundred twenty days is of no moment, as the failure to timely file proof of service is a procedural irregularity and does not constitute a jurisdictional defect (see Li v Joffe, 210 AD3d 737, 739 [2d Dept 2022]; Helfand v Cohen, 110 AD2d 751 [2d Dept 1985]; Roach v 215 Sterling LLC, 88 Misc 3d 1223 [A] [Sup Ct, Kings County 2026]). The late filing in this case being de minimis, the affidavit of service is deemed filed, nunc pro tunc.

Accordingly, the branch of the motion to dismiss plaintiff's action against Juan Antonio Prieto Ruiz upon the grounds of lack of personal jurisdiction is denied. Defendant Juan Antonio Prieto Ruiz is granted leave to make a pre-answer motion or file an answer herein within sixty (60) days after this decision and order.

The affidavit of service for JP McHale Pest Management LLC indicates that service of the summons with endorsed complaint was made on the Secretary of State on February 13, 2025, which is beyond the time limit set forth in CPLR 306-b. In such circumstances, the Court "shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interests of justice, extend the time for service" (CPLR 306-b). Here, the alleged accident occurred almost five years ago. Further, plaintiff fails to demonstrate diligence in prosecuting this action which is now beyond the period for which a default judgment be sought. Likewise, plaintiff and has failed to make reasonably diligent efforts to file a motion or cross motion seeking an extension of time for service; and has failed to demonstrate the meritorious nature of the action described in the endorsed complaint. The Court finds that plaintiff fails to demonstrate good cause shown for extending the time for service; and, considering the balance of interests of the respective parties at this juncture in time and the exercise of its discretion, the Court declines to extend the time for service based upon the interests of justice.

Accordingly, the branch of the motion to dismiss plaintiff's action against JP McHale Pest Management is granted without prejudice (CPLR 306-b).

This matter is restored to the general calendar for all purposes on September 15, 2026 at 9:30am in Part 11, Courtroom 101.

This is the Decision and Order of the Court.

Date: June 4, 2026

Hon. Peter F. Lane, JCC