On January 11, 2024, the First Department issued a decision in 1400 Ardel Constr. & Design Group, Inc. v. VBG 990 AOA, LLC, 2024 NY Slip Op. 00122, holding that the trial court erred in denying a motion for more time to serve, noting, among other things, the expiration of the statute of limitations, explaining:
Plaintiff’s motion for an extension of time to serve Atlantic with the summons and complaint should have been granted because plaintiff established the existence of several relevant factors weighing in favor of the extension. The eight-month delay in service that would have resulted from the grant of the extension was not so protracted to allow for an inference that Atlantic suffered prejudice from the delay. Moreover, although there is no record evidence that Atlantic was given actual or constructive notice of the claim, plaintiff aptly notes that any claim of prejudice is undercut by the fact that Atlantic, who posted a bond for the release of the mechanic’s lien, knew there was a high likelihood of litigation involving it as defendant VBG’s surety and had ample opportunity to investigate the claim. The record further establishes the potential merits of the lien foreclosure claim, and because the statute of limitations has expired, the denial of the extension would bar plaintiff from litigating the otherwise timely filed claim against Atlantic.
(Internal citations omitted).