Hafkin v. North Shore University Hospital ( 2000 )

Florio, J.

(dissenting.) I believe that the record is not sufficiently developed to enable this Court to properly determine whether the plaintiffs should be afforded an extension of time to serve the defendants in Action No. 1. Accordingly, I would remit this matter to the Supreme Court, Nassau County, to consider further submissions, and exercise its discretion as to whether an extension would be warranted in the interest of justice.

In this action, which was commenced less than one month after the amended CPLR 306-b went into effect, it appears that the plaintiffs’ attorney was unaware that the “deemed dismissed” feature of the prior statute had been eliminated, and that the plaintiffs would no longer have a second 120-day period in which to commence a new action and complete service of process. With no caselaw to guide the parties in the first few months after the new provision went into effect, the plaintiffs’ attorney failed to fully articulate a basis for requesting an extension of time to serve in the interest of justice. Moreover, the Supreme Court denied the plaintiffs’ cross motion for an extension of time to serve in Action No. 1 as academic, without considering the issue of whether an extension should be granted in the interest of justice as permitted by the amended CPLR 306-b. Considering the factual similarities between this case and the case of Leader v Maroney, Ponzini & Spencer (276 AD2d 194 [decided herewith]), the Legislative intent to liberally allow extensions of time where the Statute of Limitations has expired after filing, and the apparent lack of prejudice suffered by the defendant from the delay in effectuating service, under the circumstances of this case, I believe that it is appropriate to permit the parties to further develop the record and to allow the Supreme Court to exercise its discretion and determine the plaintiffs’ cross motion for an extension of time on the merits (see generally, Matter of Nationwide Ins. Co. v Miscione, 267 AD2d 312; Geiger v American Tobacco Co., 252 AD2d 474; Aini v Garau, 244 AD2d 442; see also, Boley v Kay-mark, 123 F3d 756, 758). Accordingly, I would modify the order appealed from and remit the matter to the Supreme Court, Nassau County.

Thompson and Schmidt, JJ., concur with Ritter, J. P.; Florio and Krausman, JJ., dissent and vote to modify the order appealed from by deleting the provision thereof denying that branch of the cross motion which was, in effect, to extend the plaintiffs’ time to serve the summons and complaint in Action No. 1 as academic, and to remit the matter to the Supreme Court, Nassau County, for further proceedings in accordance with the dissent, and to otherwise affirm the order, in a separate opinion by Florio, J.

Ordered that the order is affirmed, with costs.