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INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT).

The Second Department determined Supreme Court properly allowed plaintiff to extend the time to serve the summons and complaint. The initial service was timely but defective. In the mean time, the statute of limitations had run:

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). If service is not made within the time provided, the court, upon motion, must dismiss the action without prejudice, or “upon good cause shown or in the interest of justice, extend the time for service” … . “An extension of time for service is a matter within the court’s discretion” … . Here, while the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendant had actual notice of the action within 120 days of commencement of the action… . Moreover, there was no prejudice to the defendant attributable to the delay in service … . Chan v Zoubarev, 2018 NY Slip Op 00402, Second Dept 1-24-18

CIVIL PROCEDURE (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/SERVICE OF PROCESS (EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/STATUTE OF LIMITATIONS (SERVICE OF PROCESS, EXTEND TIME, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))/CPLR 306-b (EXTEND TIME TO EFFECT SERVICE, INITIAL ATTEMPT TO SERVE DEFENDANT WAS TIMELY BUT DEFECTIVE, EVEN THOUGH THE STATUTE OF LIMITATIONS HAD RUN, SUPREME COURT PROPERLY GRANTED PLAINTIFF AN EXTENSION OF TIME TO EFFECT SERVICE (SECOND DEPT))

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