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MOTION TO EXTEND THE TIME TO SERVE DEFENDANT SHOULD HAVE BEEN GRANTED, DESPITE THE FACTS THAT THE FORECLOSURE ACTION HAD BEEN DISMISSED AND THE STATUTE OF LIMITATIONS HAD RUN (SECOND DEPT).

The Second Department, in an extensive opinion by Justice Leventhal, over a two-justice dissent, reversing Supreme Court, determined Supreme Court should have granted plaintiff’s motion to extend the time to serve defendant pursuant to CPLR 306-b, despite the facts that the action had been dismissed and the statute of limitations had run. The action had been dismissed after a hearing to determine whether defendant had been served in this foreclosure action. At the time of the hearing the process server had died and plaintiff could not, therefore, meet its burden of proof:

… [W]e agree with the plaintiff that an extension of time to serve the defendant with the summons and complaint was warranted in the interest of justice. The action was timely commenced in December 2009, based on the defendant’s alleged default that year in paying his indebtedness that was secured by the mortgage. The statute of limitations, however, had expired by the time the plaintiff moved pursuant to CPLR 306-b to extend the time for service … . The defendant had actual notice of the controversy. The Supreme Court, in its order dated December 17, 2013, wrote, among other things, that the defendant “is prepared to say anything and to conceal anything to stave off a foreclosure sale” and that “[i]t is clear that [the defendant] has been well-aware that a foreclosure action was pending. (The day before a previously-scheduled foreclosure sale, [the defendant] filed a Chapter 13 bankruptcy petition).” The plaintiff also demonstrated the existence of a potentially meritorious cause of action, and the lack of identifiable prejudice to the defendant attributable to the delay in service … . Moreover, as the interest of justice standard permits consideration of “any other relevant factor” … , we take into account that the process server’s death prior to the hearing on the issue of service hampered the plaintiff’s ability to meet its burden of proof at that hearing. State of New York Mtge. Agency v Braun, 2020 NY Slip Op 01107, Second Dept 2-13-20

 

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