You are here: / / Extension for Service of Complaint After Statute of Limitations Had Run...

Extension for Service of Complaint After Statute of Limitations Had Run Properly Granted in Exercise of Discretion

The Second Department determined Supreme Court properly exercised its discretion to allow service of a complaint after the 120 period for service had passed and the statute of limitations had run:

When considering whether to grant an extension of time to effect service beyond the 120-day statutory period in the interest of justice, the court may consider the plaintiff’s diligence, or lack thereof, along with other relevant factors, including the expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff’s request for the extension of time, and any prejudice to the defendant … . A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court … .

In the instant case, an attempt at proper service was made within the 120-day period, which was later adjudicated to be defective. Furthermore, the statute of limitations had expired by the time the appellant challenged service as defective in its motion to vacate the default judgment, the plaintiff promptly cross-moved for an extension of time to effect proper service, and there was no demonstrable prejudice to the appellant attributable to the delay in effecting proper service. Under the circumstances, granting an extension of time pursuant to CPLR 306-b to serve the appellant was a provident exercise of discretion … .  Siragusa v D’Esposito, 2014 NY Slip Op 02570, 2nd Dept 4-16-14

 

You might also like
IN A MED MAL ACTION, AN EXPERT’S AFFIRMATION WHICH IS NOT SUPPORTED BY THE RECORD WILL BE DEEMED “CONCLUSORY” AND WILL NOT SUPPORT SUMMARY JUDGMENT (SECOND DEPT).
DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS TANGIBLE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT WHICH WAS ISSUED BASED UPON UNWARNED STATEMENTS MADE BY DEFENDANT, STATEMENTS WHICH HAD BEEN SUPPRESSED BY THE TRIAL COURT (SECOND DEPT).
PLAINTIFF WAS STRUCK BY DEFENDANT’S VEHICLE; DEFENDANT DRIVER IS EXPECTED TO SEE WHAT SHOULD BE SEEN; WHETHER PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT SHOULD NOT HAVE BEEN CONSIDERED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
Waiver of Right to Appeal Invalid Despite the Signing of a Written Waiver
DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE (LEVEL TWO TO ONE) IN THIS CHILD PORNOGRAPHY CASE (SECOND DEPT).
A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT DESIGN CAUSE OF ACTION AGAINST THE VILLAGE ACCRUED WHEN THE STORM DRAIN WAS INSTALLED, NOT WHEN THE FLOODING OCCURRED, AND WAS TIME-BARRED (SECOND DEPT).
THE POLICE WERE JUSTIFIED IN STOPPING A BICYCLIST WHO WAS WEAVING AND HOLDING A BULKY OBJECT IN HIS WAISTBAND; DEFENDANT’S MOTION TO SUPPRESS PROPERLY DENIED (SECOND DEPT).
LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS PROVIDED TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Brazilian Citizens Had Alternative Legal Remedies and Therefore Could Not Use... No Actionable Violations by Bank Re: Overdraft Charges/Overdraft Charges Are...