On June 7, 2023, the Second Department issued a decision in U.S. Bank Natl. Assn. v. Bindra, 2023 NY Slip Op. 03037, holding that a plaintiff should be granted additional time to serve in the interests of justice even though the plaintiff had not showed good cause for the failure timely to serve, explaining:
Generally, service of a summons and complaint must be made within 120 days after the commencement of the action. 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. Good cause and interest of justice are two separate and independent statutory standards.
To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant. In considering the interest of justice standard, 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 the defendant. The determination of whether to grant the extension in the interest of justice is within the discretion of the motion court.
Under the circumstances of this case, the plaintiff failed to demonstrate good cause for an extension of time to serve the defendant under CPLR 306-b. Nevertheless, we agree with the Supreme Court’s determination granting, in the interest of justice, 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 plaintiff established, among other things, that the action was timely commenced, and that service was timely attempted and was perceived by the plaintiff to have been within the 120-day period but was subsequently found to have been defective .Additionally, the plaintiff demonstrated that it has a potentially meritorious cause of action, and that there was no demonstrable prejudice to the defendant as a consequence of the delay in service. Moreover, the length of delay was not particularly egregious as the plaintiff promptly moved to extend the time to serve the summons and complaint upon the defendant approximately one month after it learned that the defendant had not been properly served.
(Internal quotations and citations omitted).