Destiny Rivera v. Rodriguez

Rivera v Rodriguez (2016 NY Slip Op 05855)

Rivera v Rodriguez

2016 NY Slip Op 05855

Decided on August 24, 2016

Appellate Division, Second 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 August 24, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.

2015-07507
(Index No. 9239/13)

[*1]Destiny Rivera, et al., respondents,

v

Jennifer Rodriguez, appellant.

Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Merril S. Biscone of counsel), for appellant.

Law Offices of Ardito & Ardito, LLP, Franklin Square, NY (Mitchell L. Kaufman of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated June 4, 2015, which granted that branch of the plaintiffs' cross motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon her.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' cross motion which was pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106). While the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the plaintiffs re-served the defendant within a reasonable time after learning that the timely service of process was being challenged by the defendant as defective, and the defendant had actual notice of the action within 120 days of its commencement (see Castillo v JFK Medport, Inc., 116 AD3d 899, 900; Selmani v City of New York, 100 AD3d 861, 862; Thompson v City of New York, 89 AD3d 1011, 1012; DiBuono v Abbey, LLC, 71 AD3d 720). Furthermore, after re-serving the defendant, the plaintiffs cross-moved within a reasonable time for an extension of time to serve the defendant, and there was no identifiable prejudice to the defendant attributable to the delay in service (see Castillo v JFK Medport, Inc., 116 AD3d at 900; Thompson v City of New York, 89 AD3d at 1012; DiBuono v Abbey, LLC, 71 AD3d at 720).

RIVERA, J.P., BALKIN, HINDS-RADIX and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court