You are here: / / PLAINTIFF-BANK’S MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND...
,

PLAINTIFF-BANK’S MOTION TO EXTEND THE TIME TO SERVE THE SUMMONS AND COMPLAINT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff-bank’s CPLR 306-b motion to extend the time for the service of the summons and complaint:

CPLR 306-b provides, in pertinent part, that “[s]ervice of the summons and complaint . . . shall be made within one hundred twenty days after the commencement of the action . . . . If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.”

“The interest of justice standard requires a careful judicial analysis of 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. However, 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 defendant” … . CPLR 306-b “empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative—the calculus of the court’s decision is dependent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served” … .

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion pursuant to CPLR 306-b to extend the time to serve Cruz with the summons and complaint in the interest of justice, considering, inter alia, the expiration of the statute of limitations, the meritorious nature of the plaintiff’s cause of action, the plaintiff’s prompt request for the extension, and the lack of demonstrable prejudice to [defendant]. Deutsche Bank Trust Co. Ams. v Lottihall, 2023 NY Slip Op 02999, Second Dept 6-7-23

Practice Point: The criteria for an “interest of justice,” versus a “good cause shown,” extension of time to serve the summons and complaint pursuant to CPLR 306-b explained.

 

You might also like
GOODYEAR DEMONSTRATED IT DID NOT HAVE SUFFICIENT AFFILIATIONS WITH NEW YORK TO CONFER JURISDICTION IN THIS TIRE-MALFUNCTION OUT-OF-STATE ACCIDENT CASE (SECOND DEPT).
THERE WAS A SURPLUS AFTER THE FORECLOSURE SALE OF DEFENDANT’S PROPERTY; DEFENDANT HAD ENTERED A HOME EQUITY LINE OF CREDIT WITH CITIBANK; CITIBANK, NOT DEFENDANT, WAS ENTITLED TO THE SURPLUS FUNDS (SECOND DEPT).
SCHOOL EMPLOYEE’S NEGLIGENCE ACTION AGAINST THE DEPARTMENT OF EDUCATION IS NOT GOVERNED BY THE COLLECTIVE BARGAINING AGREEMENT (CBA), NO NEED TO EXHAUST ADMINISTRATIVE REMEDIES; DENIAL OF MEDICAL LEAVE DID NOT HAVE RES JUDICATA OR COLLATERAL ESTOPPEL EFFECT (SECOND DEPT).
A DEADLINE SET IN A TIME-IS-OF-THE-ESSENCE LETTER CAN BE WAIVED ORALLY, OR EVEN BY CONDUCT ALONE (SECOND DEPT).
ALTHOUGH DEFENDANT, A DOCTOR, USED A PORTION OF THE TWO-FAMILY HOUSE AS A STUDY OR HOME OFFICE, THE EXCLUSION OF OWNER-OCCUPIED TWO-FAMILY RESIDENCES FROM LIABILITY FOR SIDEWALK DEFECTS APPLIED; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT). ​
SECOND RISK ASSESSMENT PROCEEDING, IN A DIFFERENT COUNTY, BASED UPON THE SAME RISK ASSESSMENT INSTRUMENT, SHOULD NOT HAVE BEEN HELD.
IN THIS “BAR FIGHT” “INADEQUATE SECURITY” ACTION, THE DEFENDANT BAR HAD TIMELY SUED ITS SECURITY COMPANY AS A THIRD-PARTY DEFENDANT; AFTER THE STATUTE OF LIMITATIONS EXPIRED, PLAINTIFF SOUGHT TO SUE THE SECURITY COMPANY DIRECTLY UNDER A “RELATION BACK” THEORY; PLAINTIFF’S MOTION TO SERVE AND FILE AN AMENDED COMPLAINT AGAINST THE SECURITY COMPANY DIRECTLY SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE COMPLAINANT’S IDENTIFICATION OF DEFENDANT FROM A SINGLE PHOTOGRAPH WAS UNDULY SUGGESTIVE; PROOF OF SERIOUS INJURY RE: THE ASSAULT CHARGE WAS LEGALLY INSUFFICIENT; ALTHOUGH THE LEGAL SUFFICIENCY ARGUMENT WAS NOT PRESERVED IT WAS CONSIDERED IN THE INTEREST OF JUSTICE (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

AFTER A DIVORCE PLAINTIFF SUED THE EX-WIFE AND HER ATTORNEYS ALLEGING FALSE... THE DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE THE FLOWER POT OVER WHICH PLAINTIFF...