Rosenberg Fortuna & Laitman, LLP, Garden City, NY (Anthony R. Filosa of counsel), for appellant.
LOGS Legal Group LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.
BETSY BARROS, J.P. CHERYL E. CHAMBERS LARA J. GENOVESI LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Esther Labin appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated August 1, 2022. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Esther Labin and denied that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Esther Labin is denied, and that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her is granted.
In January 2013, the plaintiff commenced this action against, among others, the defendant Esther Labin (hereinafter the defendant) to foreclose a mortgage on certain real property located in Brooklyn. Thereafter, the plaintiff purportedly effectuated service upon the defendant pursuant to CPLR 308(2) on two occasions, first at the mortgaged premises and then at an adjacent premises. The defendant failed to appear or answer the complaint. In or around October 2018, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. Approximately one month later, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her. Before rendering a final determination on either motion, the Supreme Court referred the issue of whether the plaintiff properly effectuated service upon the defendant to a special referee to hear and report. In August 2019, after a hearing, the special referee issued a report finding that the plaintiff had failed to properly effectuate service. The following month, the plaintiff moved, among other things, pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. By order dated August 1, 2022, the court, among other things, denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, and granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. The defendant appeals.
Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see id. § 306-b). Whether to grant "[a]n extension of time" to effectuate "service is a matter within the court's discretion" (Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 101). "Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice" (Wells Fargo Bank, N.A. v Fameux, 201 A.D.3d 1012, 1013). "'Good cause' and 'interest of justice' are two separate and independent statutory standards" (US Bank N.A. v Fink, 206 A.D.3d 858, 860). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Gooden v New York City Health & Hosps. Corp., 216 A.D.3d 1143, 1145 [internal quotation marks omitted]). "Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service. By contrast, good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control" (Bumpus v New York City Tr. Auth., 66 A.D.3d 26, 32 [citations omitted]).
Contrary to the plaintiff's contention, it failed to "demonstrate reasonable diligence in attempting to effect service" and, therefore, it was not entitled to an extension for good cause (Gooden v New York City Health & Hosps. Corp., 216 A.D.3d at 1145; cf. Wilmington Sav. Fund Socy., FSB v James, 174 A.D.3d 835, 837-838). By the time the plaintiff moved for an extension of time, "the Supreme Court had already determined that the defendant presented sufficient evidence to warrant a hearing on the validity of service of process," and the special referee had already found that service was improper (Countrywide Home Loans, Inc. v Lyons, 219 A.D.3d 1404, 1406; see Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 162 A.D.3d 742, 743). The plaintiff also failed to show that it had made any "efforts to locate" the defendant and confirm her place of residence, such as by submitting "evidence of... records searches" (Emigrant Bank v Estate of Robinson, 144 A.D.3d 1084, 1085; see Frank v Garcia, 84 A.D.3d 654, 654-655; Estate of Waterman v Jones, 46 A.D.3d 63, 66). Since the plaintiff did not demonstrate that its failure to properly effectuate service within the 120-day period following the commencement of this action was due to "circumstances beyond [its] control," it was not entitled to an extension for good cause (Bumpus v New York City Tr. Auth., 66 A.D.3d at 32).
"If good cause for an extension is not established, the court must consider the broader interest of justice standard of CPLR 306-b" (Wells Fargo Bank, N.A. v Ciafone, 188 A.D.3d 957, 958). "Th[is] more flexible... standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant" (U.S. Bank N.A. v Bindra, 217 A.D.3d 719, 720). "[I]n deciding whether to grant a motion to extend the time for service in the interest of justice, the court must carefully analyze the factual setting of the case and a balancing of the competing interests presented by the parties" (Wells Fargo Bank, N.A. v Kaul, 180 A.D.3d 956, 958 [internal quotation marks omitted]). In contrast to the good cause standard, "the interest of justice... standard... does not require a showing of [reasonable diligence], and [instead] permits the court to consider many factors" (Feng Li v Peng, 190 A.D.3d 950, 952). The court "may consider diligence," however, "along with other factors, including the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant" (Wilmington Sav. Fund Socy., FSB v James, 174 A.D.3d at 837 [internal quotation marks omitted]). "No one factor is determinative" (Wells Fargo Bank, NA v Barrella, 166 A.D.3d 711, 713-714 [internal quotation marks omitted]).
Here, the plaintiff was on notice in December 2018 that service upon the defendant allegedly was defective when the defendant moved to dismiss the complaint for lack of personal jurisdiction. The plaintiff nonetheless waited nearly 10 months thereafter to move for an extension of time to serve the defendant. Moreover, the plaintiff's motion was made more than two months after the hearing before the special referee concluded, even though the evidence at the hearing demonstrated that the defendant had been residing in Canada for decades (see Deutsche Bank Natl. Trust Co. v Martinez, 211 A.D.3d 909, 911-912; Federal Natl. Mtge. Assn. v Cassis, 187 A.D.3d 1145, 1148). Although the statute of limitations had already expired by the time the plaintiff moved for an extension of time, the plaintiff failed to demonstrate that it diligently prosecuted this action (see PROF-2013-M4 Legal Title Trust 2015-1 v Morales, 211 A.D.3d 866, 867; Federal Natl. Mtge. Assn. v Cassis, 187 A.D.3d at 1148). "Moreover,... the plaintiff submitted no evidence that [the defendant] had actual notice of the action against her within the 120-day service period" (Federal Natl. Mtge. Assn. v Cassis, 187 A.D.3d at 1148). Further, the plaintiff failed to rebut the inference of substantial prejudice to the defendant that arose from the protracted delay in obtaining such notice (see Wells Fargo Bank, NA v Barrella, 166 A.D.3d at 714). Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant.
Since the defendant was not properly served with the summons and complaint and the plaintiff failed to demonstrate entitlement to an extension of time to effectuate service, the Supreme Court should have granted the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her. "The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void" (Christiana Trust v Leriche, 219 A.D.3d 564, 566).
The plaintiff's contention that the defendant waived any objection to personal jurisdiction is improperly raised for the first time on appeal (see CIT Group/Consumer Fin., Inc. v Kaiser, 206 A.D.3d 791, 793; Wells Fargo Bank v Islam, 174 A.D.3d 670, 671-672).
BARROS, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.
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