You are here: / / ALTHOUGH AN ORDER DISMISSING THE COMPLAINT HAD BEEN ISSUED, NO JUDGMENT...

ALTHOUGH AN ORDER DISMISSING THE COMPLAINT HAD BEEN ISSUED, NO JUDGMENT DISMISSING THE COMPLAINT WAS ENTERED; THEREFORE THE ACTION WAS STILL VIABLE AND PLAINTIFFS COULD MOVE TO EXTEND THE TIME TO SERVE; THE MOTION SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to extend time to serve the defendants in the interest of justice should have been granted. Although defendants’ motion to dismiss the complaint for lack of personal jurisdiction had been granted, no judgment dismissing the complaint had been entered. Therefore the action was still viable when plaintiff moved to extend time:

The defendants … moved, … pursuant to CPLR 5015(a) to vacate the order and judgment entered upon their default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. After a hearing to determine the validity of service of process, the Supreme Court, by order entered March 5, 2018, granted those branches of the defendants’ motion. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff thereafter moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant … . * * *

… [A]n extension of time was warranted in the interest of justice. The plaintiff demonstrated that a potentially meritorious cause of action existed, that while it timely commenced this action, the statute of limitations had expired by the time it moved to extend the time for service, and that there was no demonstrable prejudice to the defendants as a consequence of the delay in service … . Moreover, as the interest of justice standard permits consideration of “any other relevant factor” … , this Court may consider the fact that the process server failed to comply with a subpoena to appear and give testimony at the hearing to determine the validity of service of process, thereby hampering the plaintiff’s ability to meet its burden of proof at that hearing … . Bayview Loan Servicing, LLC v Tanvir H. Chaudhury, 2020 NY Slip Op 07021, Second Dept 11-25-20

 

You might also like
SOME RESTRICTIONS ON DISCLOSURE SHOULD HAVE BEEN IMPOSED BY COUNTY COURT (SECOND DEPT).
LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT).
Executor’s Motion to Be Substituted for Decedent in Negligence Action Too Late
ALTHOUGH DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY DENIED, THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).
PROVISION IN MORTGAGE WHICH GAVE BORROWER RIGHT TO DE-ACCELERATE THE DEBT DID NOT PRECLUDE PLAINTIFF BANK FROM ACCELERATING THE DEBT BY FILING A SUMMONS AND COMPLAINT, FORECLOSURE ACTION TIME-BARRED (SECOND DEPT).
A TWO-FOOT DEEP TRENCH WAS NOT AN ELEVATION HAZARD OR A HAZARDOUS OPENING.
DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS LAST INSPECTED OR CLEANED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Defendant Did Not Forfeit His Right to Counsel by Making Four Applications for Reassignment of Assigned Counsel/Evidence of Burglary and Criminal Mischief Insufficient–Possession of Stolen Items Not Enough

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE SENTENCING JUDGE DID NOT INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES... NONPARTY BANK SHOULD NOT HAVE BEEN AWARDED POSSESSION OF A CAR SUBJECT TO CIVIL...