You are here: / / PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE”...
,

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE “GOOD CAUSE” FOR AN EXTENSION OF TIME FOR SERVICE OF PROCESS, BUT DID DEMONSTRATE ENTITLEMENT TO AN EXTENSION IN THE “INTEREST OF JUSTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of process in this foreclosure action should have been granted. Although plaintiff did not demonstrate “good cause” for the failure to timely serve, the motion met the criteria for an extension in the interest of justice:

“Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service of the summons and complaint for good cause shown or in the interest of justice” … . “Good cause and interest of justice are two separate and independent statutory standards” … . “Good cause requires a showing of reasonable diligence in attempting to effect service” … . “[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” … . Under the interest of justice standard, “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 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 [the] defendant” … .

Here, the plaintiff failed to demonstrate good cause for an extension of time to serve the defendant under CPLR 306-b. In support of the motion, the plaintiff offered nothing more than the affidavit of service of its process server. While a process server’s affidavit of service creates a presumption of proper service, the Supreme Court had already determined that the defendant presented sufficient evidence to warrant a hearing on the validity of service of process … .

However, the plaintiff established its entitlement to an extension of time to serve the defendant with the summons and complaint in the interest of justice. The plaintiff established that the action was timely commenced, that service was timely attempted and was perceived by the plaintiff to have been made within 120 days after the commencement of the action, and that the plaintiff promptly sought an extension of time to serve the defendant with the summons and complaint after the defendant challenged service on the ground that it was defective. The plaintiff also established that the statute of limitations had expired when the plaintiff made its motion to extend the time to serve, that the plaintiff had a potentially meritorious cause of action, and that there was no identifiable prejudice to the defendant attributable to the delay in service … . Countrywide Home Loans, Inc. v Lyons, 2023 NY Slip Op 04654, Second Dept 9-20-23

Practice Point: If you can’t demonstrate “good cause” for an extension of time for service of process, you still may be entitled to an extension in the “interest of justice.”

 

You might also like
CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).
APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO FILE AN AMENDED BRIEF OR A SUPPLEMENTAL BRIEF AFTER THE COURT OF APPEALS RULED SENTENCING COURTS MUST CONSIDER YOUTHFUL OFFENDER STATUS FOR ALL WHO ARE ELIGIBLE (SECOND DEPT).
MOTION TO RENEW BASED UPON LAW OFFICE FAILURE PROPERLY GRANTED; CRITERIA FOR GRANTING A MOTION TO RENEW IS FLEXIBLE.
DEFENDANT WAS PROPERLY PROHIBITED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT FALSE ARREST AND POLICE BRUTALITY LAWSUITS FILED AGAINST THE OFFICER (SECOND DEPT).
NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) APPLIED, NO EVIDENCE HOMEOWNERS SUPERVISED PLAINTIFF’S WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).
ALTHOUGH THE INITIAL INVOLUNTARY ADMISSION OF A MENTALLY ILL PATIENT REQUIRES CERTIFICATION BY LICENSED PHYSICIANS, A NURSE PRACTITIONER IS COMPETENT TO TESTIFY AT THE SUBSEQUENT RETENTION HEARING (SECOND DEPT).
NO APPEAL LIES FROM THE DENIAL OF A MOTION TO WITHDRAW A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (SECOND DEPT).

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK... THE COMPLAINT AGAINST THE LESSOR OF THE CAR INVOLVED IN THE TRAFFIC ACCIDENT...