Zoya Smushkevich v. Perel
| Citation | 69 Misc.3d 712,130 N.Y.S.3d 272 |
| Decision Date | 09 September 2020 |
| Docket Number | 501843/2020 |
| Parties | ZOYA SMUSHKEVICH, Plaintiff, v. Allan B. PEREL and Naomi Perel, Defendants. |
| Court | United States State Supreme Court (New York) |
Law Office of Yuriy Prakhin, 1883 86th Street, FL 2, Brooklyn, NY 11214, Attorney for Plaintiff
Francois A. Rivera, J. Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Zoya Smushkevich, filed on May 27, 2020, under motion sequence one, for an order pursuant to CPLR 306-b extending plaintiff's time to effectuate service of the summons and complaint upon defendants Allan B. Perel and Naomi Perel.
Affirmation in Support
Exhibit A-B
On January 24, 2020, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerks' office (hereinafter KCCO). The verified complaint contains the following salient allegations of fact. On December 30, 2019, plaintiff was lawfully walking at or near the intersection of Brighton 1st Road and Brightwater Court in Brooklyn, New York. On the same date, time and place, defendant Naomi Perel was driving a 2017 Hyundai motor vehicle, bearing New York State license plate number HPN5490 () with the knowledge and consent of its owner, Allan B. Perel.
Naomi Perel struck the plaintiff with the defendants' vehicle while traveling at or near the intersection of Brighton 1st Road and Brightwater Court in Brooklyn. The collision caused the plaintiff to sustain serious physical injuries. The collision was caused by Naomi Perel's negligent operation of the defendants' vehicle.
The plaintiff's motion papers consist of a notice of motion, an affirmation in support, and two annexed exhibits labeled A and B. Exhibit A is a copy of the instant summons and complaint. Exhibit B is described as a process server's activity log.
Generally, service of a summons and complaint must be made within 120 days after the commencement of the action ( JPMorgan Chase Bank v. Kothary , 178 A.D.3d 791, 792, 113 N.Y.S.3d 738 [2nd Dept. 2019], citing CPLR 306-b ). CPLR 306-b provides, in relevant part, that service of the summons and complaint ... shall be made within one hundred twenty days after the commencement of the action. CPLR 306-b further provides that, 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 ( Chase Home Fin., LLC v. Berger , 185 A.D.3d 1000, 128 N.Y.S.3d 577 [2nd Dept. 2020] ).
A court may, in the exercise of its discretion, extend a plaintiff's time to serve a complaint upon good cause shown or in the interest of justice ( CPLR 306-b ; State of N.Y. Mtge. Agency v. Braun , 182 A.D.3d 63, 66, 119 N.Y.S.3d 522 [2nd Dept. 2020] ; Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 104–105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ; Bumpus v. New York City Tr. Auth. , 66 A.D.3d 26, 31–32, 883 N.Y.S.2d 99 [2nd Dept. 2009] ). Good cause and interest of justice are two separate and independent statutory standards ( Bumpus , 66 A.D.3d at 31, 883 N.Y.S.2d 99 ). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service ( BAC Home Loans Servicing, L.P. v. Herbst , 180 A.D.3d 980, 981, 121 N.Y.S.3d 343 [2nd Dept. 2020], quoting Bumpus , 66 A.D.3d at 31, 883 N.Y.S.2d 99 ). ( Poyser v. JCF Trucking Corp. , 184 A.D.3d 886, 124 N.Y.S.3d 583 [2nd Dept. 2020], quoting Bumpus , 66 A.D.3d at 31-32, 883 N.Y.S.2d 99 ).
In considering the interest of justice standard, 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 ( Leader , 97 N.Y.2d at 105-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ).
On January 24, 2020, the plaintiff commenced the instant action by filing the commencement papers with the KCCO. In accordance with CPLR 306-b, the plaintiff had one hundred and twenty days from that date, that is until May 27, 2020, to serve the commencement papers on the defendants.
Plaintiff's counsel stated that he inadvertently failed to timely obtain a New York State Department of Motor Vehicles (DMV) search of the defendants to give to his process...
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