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MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to extend the time to effect service in this foreclosure action should have been granted. The initial defective service was timely and the statute of limitations ran out before the defect could be cured:

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… [T]he Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 306-b for leave to extend its time to serve the summons and complaint upon [defendant] in the interest of justice … . While the action was timely commenced, the statute of limitations had expired when the plaintiff moved for this relief, the timely service of process was subsequently found to have been defective, there was no identifiable prejudice to [defendant] attributable to the delay in proper service, and the complaint appears to be potentially meritorious … . US Bank N.A. v Saintus, 2017 NY Slip Op 06567, Second Dept 9-20-17

CIVIL PROCEDURE (MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SERVICE OF PROCESS (MOTION TO EXTEND TIME TO EFFECT SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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AFTER THE CITY MOVED FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE ON THE GROUND IT DID NOT HAVE WRITTEN NOTICE OF THE ICY CONDITION, THE PLAINTIFFS, YEARS AFTER THE STATUTE OF LIMITATIONS HAD EXPIRED, MOVED FOR LEAVE TO AMEND THE NOTICE OF CLAIM TO ALLEGE THE CITY CREATED THE DANGEROUS CONDITION; THE PLAINTIFFS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM AND THE CITY SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).
THE MAJORITY DETERMINED THE DEFENDANT DEVELOPED THE RELATIONSHIP WITH THE COMPLAINANT FOR THE PRIMARY PURPOSE OF VICTIMIZING HER AND THEREFORE 20 POINTS WERE PROPERLY ASSESSED UNDER RISK FACTOR 7; THE COMPREHENSIVE DISSENT ARGUED THERE WAS A PRE-EXISTING RELATIONSHIP WITH THE COMPLAINANT WHICH RENDERD RISK FACTOR 7 INAPPLICABLE UNDER THE COURT OF APPEALS RULING IN COOK (SECOND DEPT).
THE FAILURE TO INCLUDE THE PHONE NUMBER FOR THE NYS DEPARTMENT OF FINANCIAL SERVICES IN THE RPAPL 1304 NOTICE OF FORECLOSURE RENDERED THE NOTICE FACIALLY DEFECTIVE; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).
THE EVIDENCE DID NOT SUPPORT THE EXISTENCE OF A FATHER-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND OR PETITIONER’S ACQUIESCENCE IN THE DEVELOPMENT OF SUCH A RELATIONSHIP; THE BIOLOGICAL FATHER’S PETITION FOR A DECLARATION OF PATERNITY SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF EQUITABLE ESTOPPEL (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT SEND DEFENDANT THE NOTICE OF DEFAULT IN A SEPARATE ENVELOPE AS REQUIRED BY RPAPL 1304; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Family Assessment Response (FAR) Reports Are Not Subject to Expunction (Expungement) Prior to the Expiration of the 10-Year Statutory Period
THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).
HEARSAY ALONE CANNOT DEFEAT SUMMARY JUDGMENT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE PROPERLY GRANTED.

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