M&T Bank v. Global Sign Cleaning & Maintenance, Inc.

M&T Bank v Global Sign Cleaning & Maintenance, Inc.

2026 NY Slip Op 05092 August 26, 2026 Appellate Division, Second Department Lasalle

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. M & T Bank, respondent,

v

Global Sign Cleaning & Maintenance, Inc., defendant, Shaya Brown, appellant, Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on August 26, 2026

2024-00198, 2024-11425, (Index No. 35247/22)

Hector D. Lasalle, P.J.

Francesca E. Connolly

Janice A. Taylor

Elena Goldberg Velazquez, JJ.

By order to show cause dated February 18, 2026, this Court directed the parties to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order dated October 31, 2023, on the ground that the right of direct appeal from the order terminated upon entry in the above-entitled action of the renewal judgment. By decision and order on motion of this Court dated March 20, 2026, the motion was held in abeyance and referred to the panel of justices hearing the appeals.

Law Office of Samuel Katz, PLLC, Brooklyn, NY, for appellant.

Rupp Pfalzgraf, LLC, Buffalo, NY (Jack A. Bargnesi and Kyle C. DiDone of counsel), for respondent. APPEALS by the defendant Shaya Brown, in an action for a renewal judgment pursuant to CPLR 5014, from (1) an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated October 31, 2023, and (2) a renewal judgment of the same court entered September 10, 2024. The order, insofar as appealed from, in effect, granted that defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him only to the extent of directing a hearing to determine the validity of service of process, 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 that defendant. The renewal judgment, insofar as appealed from, upon the order, is in favor of the plaintiff and against that defendant in the total sum of $110,161.16.

Lasalle, P.J. [*1]

OPINION & ORDER On these appeals, the defendant Shaya Brown contends that the Supreme Court erred in extending the plaintiff's time to serve the summons and complaint pursuant to CPLR 306-b "upon good cause shown." There is a dearth of authority interpreting the "good cause" standard, as courts generally have focused on the "broader and more flexible" interest of justice prong of CPLR 306-b (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 102). However, in an appropriate case, where a plaintiff has demonstrated reasonable diligence in attempting service, as is presented here, the plaintiff is entitled to relief as a result of the threshold good cause prong of the statute. We take this opportunity to explore this issue.

Factual and Procedural History

The plaintiff commenced this action against, among others, Shaya Brown, for a renewal judgment pursuant to CPLR 5014. According to an affidavit of service filed by the plaintiff, the process server affixed the summons, complaint, and notice of electronic filing to the door of "437 FOSTER AVENUE, 1, BROOKLYN, NY 11230." Additionally, the affidavit of service stated that [*2]the process server had made two prior attempts to serve Brown at the same address, and mailed those documents to Brown at the same address.

Brown answered and asserted an affirmative defense alleging lack of personal jurisdiction. Subsequently, Brown moved

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pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. In support of the motion, Brown stated in an affirmation that he resided at "437 Foster Avenue, Apt. 3, Brooklyn, NY 11230," and annexed a utility bill in his name with a mailing address at "437 FOSTER AVE 3FL." Brown also submitted an affidavit of a neighbor who stated that the neighbor resided at "437 Foster Avenue, Brooklyn, NY 11230, on the first floor," and that the building contained three apartments, one on each floor, with Brown residing on the third floor. Annexed to the neighbor's affidavit was a utility bill listing the neighbor's address as "437 FOSTER AVE 1FL." The neighbor also annexed a photograph depicting four door buzzers, the top of which contained the name "Brown" and the bottom of which contained the neighbor's surname, and none of which were numbered. Brown's motion papers also referenced excerpts of surveillance video footage of the entrance of the building, purportedly date-stamped at the times set forth for service in the affidavit of service.

The plaintiff opposed Brown's motion and cross-moved, inter alia, pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Brown. In support of the cross-motion, the plaintiff annexed an information subpoena, which was dated several years before the action was commenced, and returned by Brown after it was mailed to "437 Foster Avenue,1, Brooklyn, New York 11230." In the information subpoena, which Brown signed and "[s]wore to" before a notary, Brown wrote that his present address was "437 Foster Ave." Also annexed to the cross-motion papers were a New York State Department of Motor Vehicles driver license abstract and a LexisNexis "Smartlinx" report, which the plaintiff's counsel obtained one or two months prior to commencing the action. The driver license abstract stated that Brown's address was "437 FOSTER AVE BROOKLYN NY 11230." The LexisNexis "Smartlinx" report listed several addresses for Brown, including "437 FOSTER AVE BROOKLYN NY 11230-7600." The plaintiff's counsel also stated that the pleadings mailed to Brown were not returned. In further support of the cross-motion, the process server reiterated in an affidavit the statements made in the original affidavit of service. The process server annexed to his affidavit two photographs of a doorway with the street number "437" date-stamped at the times of the attempted service set forth in the affidavit and a photograph of the papers affixed to a door, date-stamped at the time when the affidavit of service stated that the summons, complaint, and notice of electronic filing were affixed to the door of Brown's residence. In an order dated October 31, 2023, the Supreme Court, among other things, in effect, granted Brown's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him to the extent of directing a traverse hearing, granted that branch of the plaintiff's cross-motion which was pursuant to CPLR 306-b to extend the time to serve Brown, and scheduled the traverse hearing for January 15, 2024, "unless service of process has otherwise been effectuated." The court explained that the plaintiff's prima facie proof of service was rebutted by Brown's evidence that Brown lived at Unit 3 instead of Unit 1, and evidence that the process server did not attempt service at the dates and times specified. The court also found that the plaintiff established good cause for the extension and concluded that the hearing would be academic if service were properly effected. Subsequently, the plaintiff served Brown, and a renewal judgment was entered, inter alia, in favor of the plaintiff and against Brown. Brown appeals from the order dated October 31, 2023, and the renewal judgment.

Analysis

At the outset, the appeal from the order dated October 31, 2023, must be dismissed because the right of direct appeal from that order terminated with the entry of the renewal judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the renewal judgment (see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).

Pursuant to CPLR 306-b, a court may extend the time for service of the summons and complaint, "upon good cause shown or in the interest of justice." A court must grant an extension for good cause when the movant establishes that it has acted with "'reasonable diligence in attempting service'" (LaSalle Bank, NA v Ferrari, 210 AD3d 976, 977, quoting Bumpus v New York City Tr. Auth., 66 AD3d 26, 31). If good cause is not established, a court may grant an extension in the interest of justice, in the court's discretion, after considering a number of factors, including [*3]prejudice, but not necessarily reasonable diligence (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106). Most decisions discussing good cause have determined that it was not established. For example, this Court has held that law office failure does not constitute good cause (see Rodriguez v Consolidated Edison Co. of N.Y, Inc., 163 AD3d 734, 736), and that good cause is not established when a movant fails to attempt service or make a reasonably diligent effort to effect service (see Matter of Certified Collision Experts, Inc. v New York State Dept. of Motor Vehs., 232 AD3d 783, 784; Pierre v Grueso, 219 AD3d 1535, 1535-1536). In Bumpus v New York City Tr. Auth., the plaintiff's counsel did not demonstrate that he searched relevant databases and had delayed serving discovery demands to ascertain a defendant's address (see Bumpus v New York City Tr. Auth., 66 AD3d at 36).

"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" (id. at 32). For example, the Appellate Division, Fourth Department, found good cause where the plaintiff's counsel demonstrated difficulty in locating the defendant, who served in the armed forces, and the plaintiff's counsel had unsuccessfully searched an armed forces database and hired a private investigator (see Greco v Renegades, Inc., 307 AD2d 711, 712). Also, the Appellate Division, Third Department, granted an extension for good cause when the petitioner served an order to show cause commencing the proceeding pursuant to a defective method set forth by the Supreme Court in the order to show cause, holding that the petitioner should not be penalized for his reliance on the Supreme Court's order to show cause (see Matter of Stephens v New York State Exec. Bd. of Parole Appeals Unit, 297 AD2d 408, 410).

The good cause exception to rule 4(m) of the Federal Rules of Civil Procedure, the federal analog to CPLR 306-b (see Unified Ct Sys Mem in Support, Bill Jacket, L 1997, ch 476 at 6-8), applies "only in limited circumstances" and is not satisfied by "inadvertent error or ignorance of governing rules alone" (Hamilton v Endell, 981 F2d 1062, 1065 [9th Cir]).

Here, the Supreme Court properly determined that the plaintiff established good cause. The plaintiff established reasonable diligence in ascertaining Brown's address. The plaintiff's counsel reasonably relied upon the representation

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