Petracca v. Hudson Tower Owners LLC , 30 N.Y.S.3d 545 ( 2016 )

Petracca v Hudson Tower Owners LLC (2016 NY Slip Op 03835)

Petracca v Hudson Tower Owners LLC

2016 NY Slip Op 03835

Decided on May 17, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 17, 2016
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.

1168N 152353/13

[*1] Anthony Petracca, Plaintiff-Respondent,

v

Hudson Tower Owners LLC, et al., Defendants, Niall Lawlor, Defendant-Appellant.

Quirk and Bakalor, P.C., Garden City (Timothy J. Keane of counsel), for appellant.

Alexander J. Wulwick, New York, for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 20, 2014, which granted plaintiff's motion for an order extending his time to effectuate service on defendant Niall Lawlor, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiff's motion for an extension. Although plaintiff delayed in moving for an extension, other relevant factors weighed in favor of granting plaintiff's motion, including plaintiff's diligence, the expiration of the statute of limitations on plaintiff's intentional tort claims, and the absence of any prejudice to defendant, given his actual notice of

the summons and complaint (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]).

Moreover, where "some factors weigh in favor of granting an interest of justice extension and some do not, we should not disturb Supreme Court's discretion-laden determination" (Sutter v Reyes, 60 AD3d 448, 449 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2016

CLERK