You are here: / / SUPREME COURT PROPERLY DENIED PLAINTIFF BANK’S MOTION TO EXTEND THE...
,

SUPREME COURT PROPERLY DENIED PLAINTIFF BANK’S MOTION TO EXTEND THE TIME TO SERVE DEFENDANT IN THIS FORECLOSURE ACTION, TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined Supreme Court properly denied plaintiff bank’s motion to extend the time to serve defendant in the interest of justice:

… [A] court may, in the interest of justice, extend the time in which a plaintiff may effectuate proper service upon a defendant (see CPLR 306-b) … . Whether to grant an extension of time for service in the interest of justice is a discretionary determination, requiring the trial court to engage in “a careful judicial analysis of the factual setting of the case” and balance competing interests … . The trial court’s determination is guided by various factors and circumstances that may be taken into consideration, including the plaintiff’s diligence (or lack thereof), the expiration of the statute of limitations, whether the underlying cause of action is meritorious, the length in delay of service, whether the plaintiff promptly sought the extension of time and any prejudice that may be borne by the defendant … . This Court should not disturb the trial court’s discretionary determination unless such determination constitutes an abuse of discretion … . …

The statute of limitations had expired prior to plaintiff making its extension motion — a factor that weighs in favor of granting the extension motion. However, plaintiff engaged in a pattern of dilatory conduct throughout the action’s pendency over nearly a decade. Indeed, it took plaintiff roughly three years after commencing the action to file a request for judicial intervention and the case was administratively closed by Supreme Court on at least one occasion. Additionally, despite having been made aware of the service issue in April 2016, plaintiff did not ultimately move for an extension to serve the complaint until November 2018, roughly 2½ years later. Further, as Supreme Court recognized, the mortgage contains a significant error, which raises real concerns as to plaintiff’s ability to prevail upon the merits. In our view, Supreme Court weighed the appropriate factors and reasonably concluded that they did not militate in favor of plaintiff … . JPMorgan Chase Bank N.A. v Kelleher, 2020 NY Slip Op 06990, Third Dept 11-25-20

 

You might also like
Defendant Failed to Prove Three Elements of Adverse Possession
DEFENDANT PRESENTED SUFFICIENT EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND RECANTATION TESTIMONY TO WARRANT A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, COUNTY COURT REVERSED (THIRD DEPT).
AFTER DECLARING A MISTRIAL, THE JUDGE DID NOT DISMISS THE INDICTMENT OR AUTHORIZE A NEW INDICTMENT; THE SUPERSEDING INDICTMENT WAS THEREFORE A NULLITY; BECAUSE THE DEFENDANT WAS CONVICTED OF TWO COUNTS IN THE SUPERSEDING INDICTMENT WHICH WERE IN THE ORIGINAL INDICTMENT (WHICH WAS STILL VALID) THOSE CONVICTIONS WERE ALLOWED TO STAND; THE CONVICTION ON THE COUNT WHICH WAS NOT IN THE ORIGINAL INDICTMENT WAS REVERSED; DOUBLE JEOPARDY DOES NOT ATTACH AFTER A MISTRIAL (THIRD DEPT).
ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S CONVICTIONS WERE REVERSED IN THE INTEREST OF JUSTICE; THE CREDIBILITY OF ONE OF THE VICTIMS WAS IMPROPERLY BOLSTERED IN OPINION TESTIMONY BY A POLICE OFFICER AND A PSYCHOLOGIST ASSERTING THAT THE VICTIM WAS BELIEVABLE AND RELIABLE; A PRIOR INCONSISTENT STATEMENT BY ONE OF THE VICTIMS, IN WHICH THE VICTIM DENIED DEFENDANT HAD EVER MOLESTED THE VICTIM, SHOULD HAVE BEEN ADMITTED (THIRD DEPT).
HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).
WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT).
THE SUPERIOR COURT INFORMATION (SCI) DID NOT CHARGE DEFENDANT WITH CREATING AND FAILING TO REGISTER AN INTERNET IDENTIFIER, WHICH IS A VIOLATION OF THE CORRECTION LAW; INSTEAD, THE SCI CHARGED DEFENDANT WITH FAILURE TO REGISTER A FACEBOOK ACCOUNT, WHICH DOES NOT VIOLATE THE CORRECTION LAW (THIRD DEPT).
THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD 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

FATHER HAD BROUGHT HIS CHILD SUPPORT PAYMENTS CURRENT; FAMILY COURT DID NOT... PETITIONER IS ENTITLED TO DISCOVERY IN THE ARTICLE 78 PROCEEDING CONTESTING...