MEUSA v. BMW FINANCIAL SERV

Citation Codes

Equivalent Citations

citation codes

Docket Number

2005-11268.

Attorney(S)

O'Dwyer Bernstien, LLP, New York, N.Y. (David H. Schultz of counsel), for appellant BMW Financial Services. Wollerstein Futoran (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellants Wendel Ince and Claude Ince. Blank Star, PLLC, Brooklyn, N.Y. (Helene Blank of counsel), for respondents.

Judges

William F. Mastro
Mark C. Dillon

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Smart Summary

Factual and Procedural Background

This appeal arises from a personal injury action in which the plaintiffs sought to recover damages. The defendants, BMW Financial Services and Wendel Ince and Claude Ince, appealed from an amended order of the Supreme Court, Kings County, dated November 18, 2005. The challenged order denied their motions to vacate a prior Supreme Court order dated December 10, 2004, which had granted the plaintiffs’ ex parte application pursuant to CPLR 306-b to extend the time to effect service of the summons and complaint upon the defendants.

Legal Issues Presented

Whether the Supreme Court properly exercised its discretion in granting the plaintiffs’ ex parte application to extend the time for service of process under CPLR 306-b.
Whether the prior order granting leave for late service of process should be vacated based on the plaintiffs’ alleged lack of diligence and failure to provide competent evidence supporting the merits of their causes of action.
Whether the complaint should be dismissed as to BMW Financial Services and the Inces due to failure to effect timely service.

Arguments of the Parties

Appellants' Arguments

The appellants contended that the Supreme Court improvidently exercised its discretion in granting the plaintiffs’ ex parte application for late service.
They argued that the plaintiffs exhibited extreme lack of diligence, evidenced by a 2½-year delay between the filing of the complaint and the ex parte application for late service.
The appellants emphasized the plaintiffs’ failure to submit any competent evidence substantiating the merits of their claims.
The appellants pointed to the absence of a satisfactory explanation for the failure to timely serve, noting only a conclusory allegation of "law office failure."

Respondents' Arguments

The opinion does not contain a detailed account of the plaintiffs’ legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Batson v Sussman, 5 AD3d 619	Clarification that motions to vacate prior orders granting late service are properly characterized as motions to vacate such orders.	Used to identify the nature of the appellants’ motions as motions to vacate the December 10, 2004 order granting late service.
Slate v Schiavone Constr. Co., 4 NY3d 816	Establishes the standard for exercising discretion under CPLR 306-b for granting extensions of time for service, emphasizing diligence and merit.	Supported the conclusion that the Supreme Court improvidently exercised discretion due to plaintiffs’ lack of diligence and failure to show merit.
Leader v Maroney, Ponzini Spencer, 97 NY2d 95, 105-106	Guidance on the exercise of discretion in granting extensions for service and the importance of diligence and explanation for delay.	Reinforced the court’s assessment that plaintiffs’ failure to timely serve was not adequately justified.
Wilkins v Burgess, 25 AD3d 794	Application of CPLR 306-b standards in context of late service motions.	Supported the finding that the plaintiffs’ delay and lack of explanation warranted vacating the order permitting late service.
Riccio v Ghulam, 29 AD3d 558	Authority for dismissal of claims where service of process is not timely effected despite extension requests under CPLR 306-b.	Justified dismissal of the complaint against BMW and the Inces due to failure to effect timely service.

Court's Reasoning and Analysis

The court identified that the motions by BMW Financial Services and the Inces were effectively to vacate the prior order granting the plaintiffs’ ex parte application for late service of process. The court emphasized the plaintiffs’ extreme lack of diligence, notably the approximately two and a half year delay from the complaint filing to the ex parte application. The plaintiffs failed to submit competent evidence supporting the merits of their claims and offered only a conclusory “law office failure” explanation for the delay. Applying the standards set forth in CPLR 306-b and relevant case law, the court concluded that the Supreme Court had improvidently exercised its discretion in granting the extension for late service. Consequently, the court held that the order permitting late service should be vacated and the complaint dismissed as to the appellants.

Holding and Implications

The amended order dated November 18, 2005 is reversed insofar as appealed from. The court granted the appellants’ motions to vacate the prior order dated December 10, 2004, which had allowed the plaintiffs to effect late service of process under CPLR 306-b. The portions of the December 10, 2004 order permitting late service were vacated, and the complaint was dismissed as to BMW Financial Services and the Inces.

The direct effect of this decision is dismissal of the complaint against the appellants due to failure to timely serve process. The opinion does not establish new precedent but applies established principles regarding the exercise of discretion under CPLR 306-b and the necessity of diligence and adequate justification for late service.

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JOEL MEUSA et al., Respondents, v. BMW FINANCIAL SERVICES et al., Appellants, and MIKHAIL RAKHNAEV et al., Defendants.

Ordered that the amended order dated November 18, 2005 is reversed insofar as appealed from, on the law and in the exercise of discretion, with one bill of costs payable to the appellants appearing separately and filing separate briefs, those branches of the appellants' motions which were, in effect, to vacate so much of the order dated December 10, 2004, as granted the plaintiffs' ex parte application pursuant to CPLR 306-b to effect service of the summons and complaint upon the appellants are granted, and those portions of the order dated December 10, 2004 are vacated.

Contrary to the plaintiffs' contention, it is apparent that the motion of the defendant BMW Financial Services (hereinafter BMW), and the separate motion of the defendants Wendel Ince and Claude Ince (hereinafter the Inces), were, in effect, to vacate so much of the Supreme Court's prior order dated December 10, 2004, as granted the plaintiffs' ex parte application to effect ser-vice of process upon them ( see Batson v Sussman, 5 AD3d 619).

In light of, inter alia, the extreme lack of diligence shown by the plaintiffs, including the 2½-year delay between the filing of the complaint and their ex parte application to effect late service of process, the failure to tender any competent evidence substantiating the merits of their causes of action, and the lack of any explanation — other than a conclusory allegation of "law office failure" — for their failure to effect timely service, we agree with the appellants that the Supreme Court improvidently exercised its discretion in granting leave to effect late service of the summons and complaint ( see Slate v Schiavone Constr. Co., 4 NY3d 816; Leader v Maroney, Ponzini Spencer, 97 NY2d 95, 105-106; Wilkins v Burgess, 25 AD3d 794).

Accordingly, the complaint should have been dismissed insofar as asserted a. gainst BMW and the Inces ( see Riccio v Ghulam, 29 AD3d 558; CPLR 306-b).

The plaintiffs' remaining contentions are without merit. Motion by the respondents to dismiss appeals from an amended order of the Supreme Court, Kings County, dated November 18, 2005. By decision and order on motion of this Court dated May 11, 2006, the motion was held in abeyance and was referred to the Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the argument of the appeals, it is

Ordered that the motion is denied.