Thompson v. City of New York

• Decision Date: 22 November 2011
• Citation: 933 N.Y.S.2d 701,89 A.D.3d 1011,2011 N.Y. Slip Op. 08581
• Parties: Keith THOMPSON, respondent, v. CITY OF NEW YORK, defendant,Stephen Buonavita, appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08581
89 A.D.3d 1011
933 N.Y.S.2d 701

Keith THOMPSON, respondent,
v.
CITY OF NEW YORK, defendant,Stephen Buonavita, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 22, 2011.

[933 N.Y.S.2d 702]

Doniger & Engstrand, LLP, Northport, N.Y. (D. Daniel Engstrand of counsel), for appellant.

Nichols & Cane, LLP, Syosset, N.Y. (Regina C. Nichols of counsel), for respondent.

REINALDO E. RIVERA, J.P., RANDALL T. ENG, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

[89 A.D.3d 1011] In an action, inter alia, to recover damages for assault, the defendant Stephen Buonavita appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated December 14, 2010, as denied that branch of his motion which was pursuant to CPLR 3211 (a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

[89 A.D.3d 1012] The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant Stephen Buonavita (hereinafter the defendant) which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and granting that branch of the plaintiff's cross motion which was pursuant to CPLR 306–b to extend the time to serve the summons and complaint upon the defendant in the interest of justice ( see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018; DiBuono v. Abbey, LLC, 71 A.D.3d 720, 720, 895 N.Y.S.2d 726; Rosenzweig v. 600 N. St., LLC, 35 A.D.3d 705, 706, 826 N.Y.S.2d 680). When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, “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 [potentially] 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” ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018; see Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31–32, ...