Quinones v. Neighborhood Youth & Family Services, Inc., 2008 NY Slip Op 31795(U) (N.Y. Sup. Ct. 4/21/2008)

• Decision Date: 21 April 2008
• Docket Number: Motion Seq. No 2.,Motion Seq. No 1.,Motion Cal. No 27.,Motion Cal. No 26.,0020399/2007
• Citation: 2008 NY Slip Op 31795
• Parties: AURA QUINONES, Plaintiff, v. NEIGHBORHOOD YOUTH & FAMILY SERVICES, INC., NANCY MAMIS-KING, LIZETTE TAIT, JACINTO FLORES and CHRISTINE PHILLIPS, Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 31795(U)

AURA QUINONES, Plaintiff, v. NEIGHBORHOOD YOUTH & FAMILY SERVICES, INC., NANCY MAMIS-KING, LIZETTE TAIT, JACINTO FLORES and CHRISTINE PHILLIPS, Defendants.

0020399/2007

Motion Cal. No 26.

Motion Cal. No 27.

Motion Seq. No 1.

Motion Seq. No 2.

Supreme Court of the State of New York, Queens County.

April 21, 2008.

Motion Date Feburary 20, 2008.

PATRICIA P. SATTERFIELD, Judge

Upon the foregoing papers, it is ordered that the motions and cross-motion are disposed of as follows:

This is an action sounding in employment discrimination commenced by Pro Se Plaintiff Aura Quinones, a caseworker supervisor formerly employed by defendant Neighborhood Youth and Family Services, Inc., a non-profit provider of social services for youth and families, arising from the termination of her employment on November 14, 1996. Subsequent thereto, plaintiff filed a complaint with the Equal Employment Opportunity Commission, which was withdrawn, and proceeded to file a formal complaint sounding in discrimination with the New York City Commission on Human Rights ("NYCCHR"). NYCCHR issued a Determination and Order After Investigation on April 30, 1997, "finding no probable cause to believe that [defendants] have engaged or are engaging in the unlawful discriminatory practices alleged in the complaint." Upon appeal, the Determination was vacated by the Commissioner on July 3, 1997, with an instruction "that the Law Enforcement Bureau may administratively close the complaint should [plaintiff] commence an action in the United States District Court." As result of this instruction, plaintiff filed a federal action on February 21, 1997 in the United States District Court for the Southern District of New York (the "District Court"), and the NYCCHR issued a Notice of Administrative Closure After Remand on September 12, 2007, administratively closing the complaint and advising of the manner in which the Order may be reviewed. The District Court partially dismissed the complaint, but granted plaintiff leave to amend her complaint, which was filed on March 28, 1997; a second amended complaint was filed on October 23, 1997, and a second amended complaint with addendum, which asserted new claims, was filed on April 14, 1998. On May 4, 1998, the District Court dismissed all of the new claims asserted by plaintiff in the "addendum," and denied her permission to assert new claims, however by Order dated May 19, 1998, the Court allowed plaintiff to "add back" her state and city law claims of employment discrimination.²

On June 11, 1999, the matter was referred by Judge Richard Conway Casey, the District Court judge assigned to the matter, to Magistrate Judge Douglas Eaton, a United States Magistrate Judge in the District Court, for the purposes of reporting and recommending on dispositive motions. After extensive discovery, including 15 depositions, and upon submission of a motion for summary judgment by defendants on August 23, 1999, Magistrate Judge Eaton, in a sixty page Report and Recommendation to Judge Casey dated April 30, 2001, recommended that "Judge Casey grant the motion for summary judgment and dismiss the second amended complaint with prejudice." By Order Accepting Report and Recommendations dated September 26, 2001, Judge Casey stated, inter alia, that "the Report is adopted in its entirety, summary judgment is granted in favor of defendants and plaintiff's second amended complaint is dismissed with prejudice." The order further denied plaintiff's request to reopen discovery, add new parties and have counsel appointed. Thereafter, plaintiff filed a motion for reconsideration and an appeal with the District Court and the United States Court of Appeals for the Second Circuit (the "Second Circuit"), respectively; the motion for reconsideration was denied on June 17, 2002 and the Second Circuit, by Summary Order dated November 23, 2005, affirmed as modified the decision of the District Court to the extent that the dismissal of plaintiff's "pendente state and city law claims to be without prejudice." Thereafter plaintiff's petition for a rehearing was denied by the Second Circuit on August 22, 2006. Likewise denied on January 8, 2007 was plaintiff's petition for a Writ of Certiorari filed with the United States Supreme Court. In the interim, on August 31, 2006, plaintiff commenced an action in this Court based upon the same claims of discrimination and wrongful termination under Index No. 19220/06, which was dismissed by order dated June 8, 2007 [Brathwaite Nelson, J.], in response to defendants' cross-motion for dismissal for lack of personal jurisdiction. On August 15, 2007, plaintiff filed the instant action, and on the next day filed a motion to reargue/renew the June 8, 2007 order in the action pending under Index No. 19220/06. Plaintiff filed an untimely Notice of Appeal on September 13, 2007, and the motion for reargument was denied by order of the Court dated November 27, 2007.

It is upon the foregoing that plaintiff moves for an order granting an extension of time to serve defendants with the summons and complaint, directing defendants' counsel to accept such service, and allowing plaintiff to conduct a people's search on all named defendants; and on this further motion by pro se plaintiff for a default judgment against defendants. Defendants cross-move for an order dismissing the action and an order prohibiting plaintiff from filing additional motions or another lawsuit against defendants for any claim related to the instant action.

Plaintiff Pro Se's Motions

CPLR § 306-b requires service of the summons and complaint within 120 days of filing. The provision, however, further provides that 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." Therefore, in order for a plaintiff to prevail, it must be established either that there was good cause for plaintiff's failure to serve defendants within 120 days of the commencement of the action or that the court should grant the extension in the interest of justice. "Under CPLR 306-b, leave to extend the 120 day period should be liberally granted, particularly in those cases where expiration of the Statute of Limitations would prohibit recommencement of the action." Estate of Jervis v. Teachers Insurance and Annuity Association, 181 Misc.2d 971 (1999); see, Rosenzweig v. 600 North Street, LLC, 35 A.D.3d 705 (2^nd Dept.2006); Chiaro v. D'Angelo, 7 A.D.3d 746 (2^nd Dept. 2004); Foote v. Ruiz, 289 A.D.2d 374 (2^nd Dept. 2001); Scarabaggio v. Olympia & York Estates Co., 278 A.D.2d 476 (2^nd Dept. 2000). "The extension afforded by CPLR 306-b is applicable where [] service is timely made within the 120-day period but is subsequently found to have been defective (citations omitted)." Earle v. Valente, 302 A.D.2d 353 (2^nd Dept. 2003).

The "good cause" and "interest of justice" standards require different analysis. A plaintiff seeking an extension of time to effect service of process for good cause shown should demonstrate a reasonable excuse for such delay, diligence in effecting service and establish the existence of a meritorious cause of action. See, Riccio v. Ghulam, 29 A.D.3d 558 (2^nd Dept. 2006); Baione v. Central Suffolk Hosp., 14 A.D.3d 635 (2^nd Dept. 2005); Kazimierski v. New York University, 18 A.D.3d 820 (2^nd Dept. 2005); Lipschitz v. McCann, 13 A.D.3d 417 (2^nd Dept.2004); Stuart v. Gimpel, 2 A.D.3d 625 (2^nd Dept. 2003); Desilva v. Town of Brookhaven, 299 A.D.2d 409 (2^nd Dept. 2002). Where, however, an extension in the interest of justice is sought, the court may consider all of the relevant factors before making its determination, with no one factor being dispositive. Scarabaggio v. Olympia & York Estates Co., 278 A.D.2d 476 (2^nd Dept. 2000). "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 plaintiffs request for the extension of time, and prejudice to defendant." Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-106 (2001); Valentin v. Zaltsman, 39 A.D.3d 852, 852 (2^nd Dept. 2007); Riccio v. Ghulam, 29 A.D.3d 558, 815 N.Y.S.2d 125 (2^nd Dept. 2006); Tarzy v. Epstein, 8 A.D.3d 656 (2^nd Dept. 2004); Winter v. Irizarry, 300 A.D.2d 472 (2^nd Dept. 2002); Rihal v. Kirchhoff, 291 A.D.2d 548 (2^nd Dept. 2002).

Here, plaintiff has failed to demonstrate that an extension of time to serve is warranted in this matter based upon either a good cause shown or in the interest of justice. Plaintiff attempted to serve defendants on November 12, 2007 at the previous offices of the now defunct corporate entity, defendant Neighborhood Youth and Family Services, Inc., to no avail. Thereafter, plaintiff purportedly served the pleadings upon defendants' previous counsel in the underlying federal actions, Dewey & LeBoeuf, LLP,³ which was the jurisdictional basis for dismissal in the action commenced in this Court on August 31, 2006 under Index No. 19220/06. There is no indication that any additional attempts to serve were made. Thus, there is a complete lack of due diligence displayed in attempting to serve defendants, and service upon the previous counsel for defendants, is palpably improper. Kazimierski v. New York University, 18 A.D.3d 820 (2^nd Dept. 2005). "An attorney is not automatically considered the agent of his client for...