On November 23, 2022, the Second Department issued a decision in LaSalle Bank, NA v. Ferrari, 2022 NY Slip Op. 06699, denying plaintiff an extension of time to serve due to lack of due diligence, explaining:
[T]he Supreme Court properly denied that branch of the plaintiff’s motion. Pursuant to CPLR 306-b, a court may extend the time for service “upon good cause shown or in the interest of justice.” Good cause and interest of justice are two separate and independent statutory standards.
Contrary to the plaintiff’s contention, it failed to demonstrate good cause for an extension of time to serve the defendant. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. Here, the plaintiff failed to establish reasonable diligence. The plaintiff was unable to produce the process server to testify at the hearing, as the process server was deceased, and the plaintiff did not produce the process server’s logbook or other evidence of service to refute the defendant’s assertions that the plaintiff had served a different person who was also named Patricia Murphy, and that the defendant resided at the subject property, not the address where service allegedly was effected.
Where, as here, the plaintiff fails to establish good cause, courts must consider the interest of justice standard of CPLR 306-b. 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. The interest of justice standard is a broader standard ‘to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant.
Contrary to the plaintiff’s contention, it failed to demonstrate that an extension of time to serve the defendant was warranted in the interest of justice. The plaintiff was on notice in or around December 2014 that service upon the defendant allegedly was defective. Yet, the plaintiff waited until November 2016, on the eve of a hearing to determine the validity of service of process, to move for an extension of time to serve the defendant. In addition, the plaintiff failed to demonstrate that it had a meritorious cause of action.
Although the statute of limitations had expired by the time the plaintiff moved for an extension of time, a factor that usually would weigh in the plaintiff’s favor, the lengthy delay in this action was attributable to an overall extreme lack of diligence on the part of the plaintiff.
Furthermore, the plaintiff submitted no evidence that the defendant had actual notice of the action within 120 days of its commencement.
(Internal quotations and citations omitted).