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FIVE-DAY EXTENSION FOR A RESPONSE TO AN ANSWER SERVED BY MAIL DOES NOT APPLY TO THE SENDER’S 60-DAY PERIOD TO MOVE TO DISMISS (SECOND DEPT).

The Second Department determined serving the answer by mail did not increase to 65 days the statutory 60-day period for a motion to dismiss. The five-day “service by mail” extension applies to a response to service by mail, not to any time-periods which apply to the sender:

The Legislature did not intend CPLR 2103 (b) (2) as a means by which a party could, as a general matter, extend its own time to make a motion. Instead, the Legislature enacted the provision to give the party responding to service by mail the full amount of the “responding period” provided for the doing of an act … . * * *

In the situation presented here … a defendant will always have the statutory 60 days to move for dismissal under CPLR 3211 (e), regardless of how it chooses to serve its answer. There is no delay in the defendant’s time to make its motion due to papers being in transit, and there is no necessary intervening event between the defendant’s service of its answer and its ability to move under CPLR 3211 (e). We hold that CPLR 2103 (b) (2) does not give the defendant the option to extend that period by another five days, as the legislative intent behind CPLR 2103 (b) (2) was to give an additional five days to a responding party. HSBC Bank USA, N.A. v Maniatopoulos, 2019 NY Slip Op 06184 [175 AD3d 575], Second Dept 8-21-19

 

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