On January 3, 2023, Justice Reed of the New York County Commercial Division issued a decision in Deutsche Bank Sec. Inc. v. 683 Capital Partners LP, 2023 NY Slip Op. 50002(U), granting additional time to serve in the interests of justice despite failure to prove due diligence, explaining:
Pursuant to CPLR 2221(e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion.
Here, this court does not find that Deutsche Bank provided reasonable justification for failing to present the documents and facts now being offered to this court for consideration. Deutsche Bank admits that, at the time of motion filing, it did not possess the requisite information needed to properly file an affidavit of compliance, rendering service jurisdictionally defective. The failure to properly file an affidavit of compliance required by BCL § 307(c) (2) is a jurisdictional defect and is not a mere irregularity subject to cure. That portion of Deutsche Bank’s motion that seeks renewal is denied.
However, this court may issue an extension of time to serve a party in the interest of justice, notwithstanding a party’s inability to show good cause for an extension of time to serve defendant with process. In Leader v Maroney, Ponzini & Spencer (97 NY2d 95, 105-106 [2001]), the Court of Appeals explained that,
the interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, 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.
Here this court finds that, in the interest of justice, Deutsche Bank shall be given additional time to serve and confirm compliance with Business Corporation Law § 307. ]Deutsche Bank demonstrated reasonable efforts to effectuate service upon Neuberger within the 120-day period after it commenced this action, has demonstrated it obtained, albeit belatedly, the documentation needed to properly serve and file its affidavit of compliance, and the length in delay of service will not prejudice the Neuberger defendant as it is clear its counsel has been consistently apprised of all service efforts and was provided with all relevant documentation.
(Internal quotations and citations omitted).