Court Denies Extra Time for Service Based on Lack of Diligence

On January 3, 2023, Justice Reed of the New York County Commercial Division issued a decision in Ardel Constr. & Design Group, Corp. v. VBG 990 AOA LLC, 2023 NY Slip Op. 50003(U), denying a motion to extend time to serve because of the plaintiff’s failure to diligently attempt to serve within the 120 days set by statute, explaining:

CPLR § 306-b provides that service of the summons and complaint on a defendant shall be made within 120 days of the filing of the summons and complaint. If service is not made within such time period, the court, within its discretion, may extend plaintiff’s time to serve the summons and complaint upon good cause shown or in the interest of justice.

Pursuant to CPLR § 2004, the court may extend the time fixed by any statute upon a showing of good cause and upon such terms as may be just, whether the application for an extension is made before or after the expiration of the time fixed.

In addition, CPLR § 3012 (d) provides that upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default. CPLR § 2005 further provides that when the requirements of CPLR § 3012 (d) are satisfied, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.

To demonstrate good cause, a plaintiff must show that reasonable diligence was exercised in attempting to timely serve a defendant. An extension of time request sought in the interest of justice does not require diligent attempts 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 the 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. Law office failure is an insufficient excuse for not timely serving defendant.

In the court’s discretion, based on the facts and circumstances of this case, plaintiff’s motion for an extension of time to serve is denied. Although plaintiff served its pleadings on VBG and attempted to serve Atlantic within the 120-day service period pursuant to CPLR § 306-b, plaintiff nonetheless failed to show diligence in its efforts to effectuate service on Atlantic, especially because plaintiff failed to follow-up with the process server regarding service of the original and amended complaints within the 120-day service period. There is also no indication that plaintiff inquired about service with the process server even after the 120-day service period expired. Furthermore, there was no evidence that indicated that Atlantic could not be located, or that they could not be readily served through the Secretary of State.

The last unsuccessful service attempt on Atlantic was in October 2021, the CPLR § 306-b 120-day service period expired in November 2021, and the statute of limitations for the lien foreclosure cause of action expired in April 2022. The instant motion was not commenced until July 2022 and yet plaintiff does not proffer an excuse for this delay. Plaintiff attempts to argue that it was under the belief that VBG’s motion to dismiss sought to dismiss all claims, including the only cause of action against Atlantic, but this does not excuse plaintiff’s failure to serve Atlantic with the pleadings. Furthermore, it does not appear that plaintiff even attempted to serve Atlantic with the instant motion. It does not appear that Atlantic has yet received any notice of this action.

(Internal quotations and citations omitted).

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