Segal v Thaler

Supreme Court, Kings County

Decided on June 29, 2026

Index No. 503663/2025

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 10, 2026, under motion sequence number one, by Helene Segal (hereinafter the plaintiff Segal^FN1) for an order (1) pursuant CPLR 306-b for an extension of time to serve Yisroel Thaler (hereinafter defendant) with the summons and verified complaint and (2) pursuant to CPLR 308 (5), allowing the plaintiff to effectuate said service on the defendant by [*2]instant message through the WhatsApp messaging platform and by e-mail, or other method designated by the Court. The motion is unopposed.

Notice of motion

Affirmation in support by Binyomin Z. Bendet, attorney for plaintiff Segal

Exhibits A-B

Affidavit in support by plaintiff Thaler^FN2

Affirmation in support by Samuel Katz, attorney for plaintiff Thaler

Exhibit A

Affirmation of Phillip Mallor

BACKGROUND

On January 31, 2025, plaintiffs Helene Segal and Miriam Thaler commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (hereinafter KCCO).

The verified complaint alleged nineteen allegations of fact in support of two causes of action for breach of contract. The first cause of action is for a breach of contract on a $300,000.00 promissory note. The second cause of action is for a breach of contract on a $600,000.00 promissory note. The verified complaint alleged the following salient facts.

As to the first cause of action, on September 7, 2023, the defendant executed a promissory note in the principal sum of $300,000.00 promising to pay plaintiff Segal the principal sum of $300,000.00 by January 31, 2024. Plaintiff Segal, or her agent, is in possession of the original $300,000.00 promissory note and is a holder in due course entitled to enforce the promissory note. Defendant breached the promissory note and failed to repay any portion of the $300,000.00 to plaintiff Segal by January 31, 2024.

Pursuant to the terms of the promissory note, notice of the defendant's default was sent on January 8, 2025, by e-mail to a certain email address^FN3 and such notice was deemed effective when sent. Defendant has failed to cure the default, and there is currently an unpaid sum of $300,000.00. Plaintiff Segal claims entitlement to entry of a judgment as against the defendant in the amount of $300,000.00 plus statutory interest from January 31, 2024.

As to the second cause of action, in September of 2023. The defendant executed a promissory note in the principal sum of $600,000.00 promising to pay the plaintiff Thaler the principal sum of $600,000.00 by September 30, 2024. Plaintiff Thaler, or her agent, is in possession of the original $600,000.00 promissory note and is a holder in due course entitled to enforce the promissory note. Defendant breached the promissory note by failing to make any of the agreed installment payments when due and failed to repay any portion of the $600,000.00 to plaintiff Thaler. Pursuant to the terms of the promissory note, notice of defendant's default was sent on January 8, 2025 by e-mail to a certain email address^FN4, and such notice was deemed [*3]effective when sent. Defendant has failed to cure the default, and there is currently an unpaid sum of $600,000.00. Accordingly, plaintiff Thaler is entitled to entry of a judgment as against defendant in the amount of $600,000.00 plus statutory interest from September 30, 2024.

Prior to the filing of the instant motion, the only document filed in the NYSCEF system was the summons and verified complaint under NYSCEF Doc. No. 1. The instant motion was filed beginning at NYSCEF Doc. No. 2.

LAW AND APPLICATION

CPLR 306-b states in part as follows:

"Service of the summons and complaint, . . . shall be made within one hundred twenty days after the commencement of the action or proceeding . . . 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."

Pursuant to CPLR 306-b, a plaintiff has 120 days after the filing of the summons and complaint to effectuate service upon the defendant. If service is not made within the statutory time, the court "may, in the exercise of discretion, grant a motion for an extension of time to effect service for 'good cause shown' or 'in the interest of justice'" (Wells Fargo Bank, N.A. v Barasch, —NYS3d—, 2026 NY Slip Op 03843, *1 [2d Dept 2026]), quoting BAC Home Loans Servicing, L.P. v Tessler, 208 AD3d 619, 621 [2d Dept 2022]). "Good cause and interest of justice are two separate and independent statutory standards" (Crystal v American Tr. Ins. Co., 230 AD3d 1229, 1229-1230, [2d Dept 2024], quoting PNC Bank, N.A. v Sarfaty, 225 AD3d 721, 722 [2d Dept 2024]).

"To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Rivera v Michaelsen, 225 AD3d 639, 640 [2d Dept 2024]), quoting U.S. Bank N.A. v Bindra, 217 AD3d 719, 720 [2d Dept 2023]). "Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service" (HSBC Bank USA, N.A. v Labin, 232 AD3d 861, 863 [2d Dept 2024], quoting Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2d Dept 2009]). Courts have found good cause shown where plaintiff's submissions included affidavits of attempted service, evidence of various inquiries, and records searches (see Rivera v Michaelsen, 225 AD3d 639, 641 [2d Dept 2024]), or where "plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control" (HSBC Bank USA, N.A. v Labin, 232 AD3d 861, 863 [2d Dept 2024]), quoting Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2d Dept 2009]).

In the absence of good cause, courts will consider the interest of justice standard (see HSBC Bank USA, N.A. v Labin, 232 AD3d 861, 863 [2d Dept 2024]).

"The 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. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, 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" (Deutsche Bank Trust Co. Ams. v Lottihall, 217 AD3d 653, 655 [2d Dept 2023], [*4]quoting Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]).

Extension Under Good Cause

The action was commenced on January 31, 2025. The plaintiffs had until May 31, 2025 to serve the summons and verified complaint on the defendant. There was no evidence demonstrating that the plaintiffs had made any efforts at service within the 120 days. No affidavits of service or attempts at service were filed in the KCCO prior to the filing of the instant motion. Plaintiff Segal failed to demonstrate reasonable due diligence in attempting service.

The instant notice of motion was filed eight months and ten days after the 120 days had already elapsed. Although plaintiff Segal submitted an affirmation by Philip Mallor in support of her motion, the affirmation simply stated that Philip Mallor was hired to "conduct address searches on the Defendant in this matter, Yisroel Thaler", that his "office conducted database searches using TLO, IRB, and Tracers", and that "[t]he databases gave results indicating the addresses that are known to Plaintiff Miriam Thaler as not applicable or longer viable". The affirmation failed to demonstrate that the plaintiffs made at least a reasonably diligent effort at service before the 120 days elapsed. Therefore, based on the papers submitted in support of the instant motion, plaintiff Segal failed to demonstrate good cause for an extension of time to serve the defendant with the summons and verified complaint.

Extension in the Interest of Justice

As previously indicated, plaintiff Segal did not exercise due diligence in attempting service. It is a curious fact considering that the plaintiffs made a nearly one-million-dollar loan to the defendant with no knowledge of where the defendant resided or worked. The two promissory notes were both executed in September 2023. CPLR 213 provides for a six-year statute of limitation on a breach of contract claim. Consequently, the action would not be time-barred if the motion was denied. Moreover, plaintiff Segal waited over 8 months after the 120-day deadline had elapsed before making the instant motion. Under these circumstances, plaintiff Segal did not establish a basis for an extension of time in the interest of justice.

Therefore, the Court does not reach the branch of plaintiff Segal's motion seeking an order authorizing an alternative method service pursuant to CPLR 308 (5).

CONCLUSION

The branch of the motion by plaintiff Helene Segal for an order pursuant CPLR 306-b for an extension of time to serve defendant Yisroel Thaler with the summons and verified complaint is denied.

The branch of the motion by plaintiff Helene Segal for an order pursuant to CPLR 308 (5) allowing the plaintiff Segal to effectuate said service on the defendant by instant message through the WhatsApp messaging platform and by e-mail, or by another method designated by the Court is denied as moot.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.