Foote v. Ruiz

Dec 17, 2001
Versions:289 A.D.2d 374
734 N.Y.S.2d 887
2001 N.Y. App. Div. LEXIS 12217

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated April 23, 2001, which granted the plaintiffs’ motion pursuant to CPLR 306-b to extend their time to serve the summons and complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the plaintiffs an extension of time to serve the summons and complaint on the defendant in the interest of justice pursuant to CPLR 306-b (see, Hafkin v North Shore Univ. Hosp., 97 NY2d 95; Scarabaggio v Olympia & York Estates Co., 97 NY2d 95; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95). Although the summons and complaint were filed before the expiration of the Statute of Limitations, the plaintiffs’ claims would be extinguished without an extension as the Statute of Limitations has since expired (see, Beauge v New York City Tr. Auth., 282 AD2d 416). In addition, the plaintiffs timely moved for an extension within the 120-day period set forth in CPLR 306-b, the defendant received actual notice of the action within that statutory period, and he failed to demonstrate any prejudice attributable to the delay (see, Beauge v New York City Tr. Auth., supra; Scarabaggio v Olympia & York Estates Co., supra; Leader v Maroney, Ponzini & Spencer, supra). O’Brien, J. P., McGinity, H. Miller and Adams, JJ., concur.