Summary
The New York Appellate Division, Second Department, reversed an order denying a mortgage foreclosure plaintiff's motion to extend the time for service under CPLR 306-b. The court held that the action remained pending because no judgment dismissing the complaint had been entered and granted an extension in the interest of justice, citing the potentially meritorious claim, expiration of the statute of limitations, lack of demonstrated prejudice, and difficulties involving the process server's testimony.
Holdings
- Because no judgment dismissing the action had been entered, the action remained pending when Bayview moved under CPLR 306-b, and Bayview was not foreclosed from seeking an extension of time to serve process.
- An extension of time to serve the summons and complaint was warranted in the interest of justice.
Questions Presented
- Whether a plaintiff may move under CPLR 306-b for an extension of time to serve process when an order has granted a motion to dismiss for lack of personal jurisdiction but no judgment dismissing the action has been entered.
- Whether an extension of time to serve the summons and complaint was warranted under CPLR 306-b's interest-of-justice standard.
Disposition
reversed
Cases Cited (8)
- State of New York Mtge. Agency v. Braun, 182 A.D.3d 63, 66-67(followed)
- U.S. Bank N.A. v. Saintus, 153 A.D.3d 1380, 1382(followed)
- Cooke-Garrett v. Hoque, 109 A.D.3d 457(followed)
- Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d 820, 822(followed)
- Chandler v. Osadln, Inc., 181 A.D.3d 897(followed)
- Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105-106(followed)
- BAC Home Loans Servicing, L.P. v. Herbst, 180 A.D.3d 980, 981-982(followed)
- JPMorgan Chase Bank, N.A. v. Kothary, 178 A.D.3d 791, 793(followed)
Cited In (0)
No citing cases on record yet.
Court Document
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