Wells Fargo Bank v. Barrella

• Decision Date: 07 November 2018
• Docket Number: Index No. 27754/09,2016–11770
• Citation: 166 A.D.3d 711,88 N.Y.S.3d 36
• Parties: WELLS FARGO BANK, NA, etc., Respondent, v. Joseph N. BARRELLA, etc., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 711

88 N.Y.S.3d 36

WELLS FARGO BANK, NA, etc., Respondent,

v.Joseph N. BARRELLA, etc., et al., Appellants, et al., Defendants.

2016–11770

Index No. 27754/09

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

Argued—May 21, 2018

November 7, 2018

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Bruce J. Bergman and Anthony Filosa of counsel), for appellants.

McCabe, Weisberg & Conway, LLC, New Rochelle, N.Y. (Allison J. Sanders and Henry Distefano of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Joseph N. Barrella, Russell Barrella, and Gail Fatato appeal from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), entered June 3, 2016. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was pursuant to CPLR 306–b to extend, nunc pro tunc, its time to serve the defendant Joseph N. Barrella and denied the cross motion of those defendants pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was pursuant to CPLR 306–b to extend, nunc pro tunc, its time to serve the defendant Joseph N. Barrella, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof denying that branch of the cross motion of the defendants Joseph N. Barrella, Russell Barrella, and Gail Fatato which was pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against the defendant Joseph N. Barrella, and substituting therefor a provision granting that branch of the cross motion, and (3) by adding thereto a provision stating that the denial of those branches of the cross motion which were to dismiss the complaint insofar as asserted against the defendants Russell Barrella and Gail Fatato is without prejudice to renew; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendant Joseph N. Barrella.

On November 24, 2009, the plaintiff's former counsel, Steven J. Baum, P.C., commenced this residential foreclosure action by filing the summons and complaint with the Westchester County Clerk. In February 2012, the plaintiff retained new counsel, who discovered that the plaintiff's former counsel had failed to serve, among others, the defendant Joseph N. Barrella (hereinafter Joseph), as administrator, heir, and distributee of Anastasia Barrella, the surviving spouse of Joseph A. Barrella.

On June 22, 2015, approximately 5½ years after commencing the action, the plaintiff effectuated personal service upon Joseph by serving a person of suitable age and discretion at his actual place of business. On or about January 8, 2016, more than six months after serving Joseph and after the expiration of the statute of limitations, the plaintiff moved, inter alia, pursuant to CPLR 306–b to extend, nunc pro tunc, its time to serve Joseph. Joseph, together with the defendants Russell Barrella (hereinafter Russell), as heir and distributee of Anastasia Barrella, and Gail Fatato, as heir and distributee of Anastasia Barrella (hereinafter collectively the defendants), opposed the motion and cross-moved pursuant to CPLR 306–b to dismiss the complaint insofar as asserted against them. The Supreme Court, relying upon CPLR 306–b's interest of justice provision, granted that branch of the plaintiff's motion which was to extend its time to serve Joseph and denied the defendants' cross motion. The defendants appeal and we modify.

As relevant here, CPLR 306–b provides that "[s]ervice of the summons and complaint ... shall be made within one hundred twenty days after the commencement of the action." Further, "[i]f 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." " ‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards" ( Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 31, 883 N.Y.S.2d 99 ; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" ( Bumpus v. New York City Tr. Auth., 66 A.D.3d at 31–32, 883 N.Y.S.2d 99 ; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). "If good cause for an extension is not established, courts must consider the ‘interest of justice’ standard of CPLR 306–b" ( Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99 ), which "requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). "Unlike an extension request premised on good cause, a plaintiff [seeking an extension in the interest of justice] need not establish reasonably diligent efforts at service as a threshold matter" ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). "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 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 Moundrakis v. Dellis, 96 A.D.3d 1026, 1027, 947 N.Y.S.2d 575 ; Bumpus v. New York City Tr. Auth., 66 A.D.3d at 32, 883 N.Y.S.2d 99 ). "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" ( Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ).

Here, the Supreme Court improvidently exercised its...