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MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT).

The Second Department determined plaintiff’s motion to extend the time to serve defendant (Nayak) in this medical malpractice action was properly granted, even though the statute of limitations expired in the interim between filing the summons and complaint and the motion to extend. Plaintiff’s attempt at timely service was found to be defective:

The plaintiff’s cross motion pursuant to CPLR 306-b to extend the time to serve Nayak with the summons and complaint was properly granted in the interest of justice … . When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “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 [potentially] 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” … Here, the record established that the plaintiff exercised diligence in timely filing, and in attempting to serve Nayak and notify Nayak and her insurance carrier of the summons and complaint within the 120-day period following the filing of the summons and complaint, although the attempt to serve Nayak was ultimately deemed defective … . While the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the plaintiff promptly cross-moved for an extension of time to serve Nayak, and there was no identifiable prejudice to Nayak attributable to the delay in service … . Furze v Stapen, 2018 NY Slip Op 03338, Second Dept 5-9-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/EXTEND TIME TO SERVE (MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/CPLR 306-b (SERVICE OF PROCESS, MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))/SERVICE OF PROCESS  (MOTION TO EXTEND TIME TO SERVE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED, EVEN THOUGH STATUTE OF LIMITATIONS HAD EXPIRED (SECOND DEPT))

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