Defendant. The following papers read on these applications: 1. for dismissal 2. for an extension of time X X X X

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. BRUCE D. ALPERT Justice DESIREE MARTIN, -against- Plaintiff, TRIAL/IA& PART 9 NASSAU COUNTY INDE No. 6691/00 Motion Sequence Nos. l-2 AIOM REALTY MANAGEMENT CORP., MOTION DATE: November 17,200O Defendant. The following papers read on these applications: 1. for dismissal 2. for an extension of time Notice of Motion Notice of Cross-motion Affirmation in Opposition Reply Affirmation Upon the foregoing papers it is ordered that the respective applications are determined as hereinafter set forth. The motion-in chief, to the extent that it is predicated upon the assertion that the action was commenced subsequent to the expiration of the limitations period, is denied.

2 This aspect of the instant application was prompted by counsel s apparent inability to discern the date of the action s commencement from the face of the underlying summons. Believing that the filing date read April 28,2000, moving counsel asserted that the action was time barred; the statute of limitations having expired on April 26,200O. As plaintiffs receipt indicates that the index number assigned to the action upon the filing of process was acquired on April 26,2000, the action was commenced within the statutory period. Plaintiffs failure to acquire jurisdiction over the defendant within 120 days of the action s commencement, as required by CPLR 306-b, serves as the predicate for the remaining prong of the defendant s application and plaintiffs corresponding prayer for extension relief. As amended, CPLR 306-b provides, in pertinent part, as follows: Service of the summons and complaint *** shall be made within one hundred twenty days after their filing *** 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. To obtain an extension under CPLR 306-b, a party must demonstrate either good cause for the default, or establish that a grant of such relief would promote the interests of justice. (see, Busler v Corbett, 259 AD2d 13 [4th Dept.]) 2

3 The Legislative history makes clear that good cause and interest iustice of are to be treated as separate and distinct grounds for granting an extension of time to serve. In a legislative report prepared by the New York State Bar Association Practice Law and Rules, which is included in the amended statute s Committee on Civil s bill jacket, it was noted that since the term good cause does not include conduct usually characterized as law office failure * * proposed CPLR 306-b provides for an additional and broader standard, i.e. the interest of justice, to accommodate late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant. (Leader v Maroney, Ponzini supplied]) & Spencer, _ AD2d _, 718 NYS2d 374, [emphasis Good cause is a written expression or explanation by the party or his legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement. (Surace v Lostrappo, 176 Misc2d 408,410) Good cause is generally found only in exceptional circumstances where the plaintiffs failure to serve process in a timely manner was the result of circumstances beyond its control. Eastern Refractories Company, Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503,505 (S.D.N.Y. 1999). An attorney s inadvertence, neglect, mistake or misplaced reliance does not constitute good cause. Id. (State of New York Sella, v 185 3

4 Misc2d 549,553) While plaintiffs counsel intimates that the dislocation associated with moving occasioned a delay in the action s initiation until April 26,2000, the date on which the limitations period was due to run, he offers no explanation for the failure to serve process within the 120 day post-commencement period. In the matter sub judice, there is no indication that plaintiff actually attempted to acquire jurisdiction over the defendant within the temporal parameters of CPLR 306-b. (see, Leader v Maroney, Ponzini & Spencer, supra at p 378) Inexplicably, cross-moving counsel completely ignores the question of why jurisdiction was not seasonably obtained over the defendant, a corporate entity readily amenable to the service of process under the Business Corporation Law, as well as the Civil Practice Law and Rules. (see, generally, Hafkin v North Shore University Hospital, _ AD2d _, 718 NYS2d 379,381) While the Court, in resolving applications to extend the 120 day rule, is imbued with broad discretion in determining whether good cause has been demonstrated, due to a failure of proof the Court is unable to conclude that the delay herein was occasioned by circumstances beyond counsel s control. Neither law office failure nor the misplaced reliance upon the diligence of one retained to serve process may be construed as the functional equivalent of good cause. (see, Howard v Klynveld Peat Mar-wick Goerdeler, 977 FSupp 654, 658, aff d 173 F3d 844 [citing, McGregor v United States, 933 F2d 156, 4

5 1601) W hen v ie w ed fro m th is perspective, plaintiffs failure to satisfy the good cause standard is readily apparent. W here, as here, the plaintiff is unable to de m onstrate good cause, e x te m ay still be available under the i n terest of justice exception. Inas m uch as the action w as co mm enced during the li m itations period; inas the defendant, in response to the plaintiffs seasonable cross-application, failed to delineate the m anner in wh ich it wou ld be prejudiced by a grant of the relief sought, the exercise of its discretionary authority, denies the defendant grants plaintiffs prayer for extension relief. (see, Scarabaggio v s application for dis m issal and & Y ork E states O lymp ia Company _, AD2d _,7 18 NYS2d 392 [ 1 st D ept.]; Leader v M aroney, Ponzini & Spencer, supra; Bus ler v Co rbett, supra) Though the Cou rt is cognizant of the fact that the action wou ld be ti m e ba the deadline for service of process not extended, the necessity to defend the clai purported m erits, standing alone, is not construed as a species of prejudice sufficient to justify w it hho ld ing ex tension relief. (see, G riffi n v Ou r Lady of M ercy M edical 276 AD 2d39 1 [ 1 st D ept.]) In this regard the Cou rt no tes that the concept of prejudice concerns an i m pair m ent of one s capacity to m oun t a defense on the m erits, not so m e technical or procedural advantage. (see, Bus ler v Co rbett, supra at p. 16, citing 5

6 Boley v Kaymark, 123 F3d 756, , cert denied 522 US 1109) Upon the service of a copy of this Order with notice of entry, the summons and complaint will be deemed to have been timely served nunc pro tune. (see, Spitzer v The Dewar Foundation, Inc., _ AD2d NYS2d, _, 2001 N.Y. App. Div. Lexis 1726 [ 1st Dept.]) The time for joinder of issue shall be governed by CPLR 321 l(f). In an effort to facilitate the expeditious resolution of the litigation, counsel are directed to appear for a Preliminary Conference before the assigned clerk (lower level) on March 22,200l at 2:30 p.m. The subject conference may not be adjourned without further Order of this Court and only upon a demonstration of good and substantial cause. Dated: March 1,200l NW 30 OFFICE 6