In this triо of cases, we are asked to determine the standards by which a court may exercise its discretion to extend a plaintiffs time to effectuate service pursuant to CPLR 306-b.
As originally enacted in 1992, CPLR 306-b transformed New York from a commencement-by-service to a commencement-by-filing jurisdiction
(see,
CPLR former 306-b, added by L 1992, ch 216, § 7, repealed by L 1997, ch 476, § 1). This sweeping change conferred a considerable benefit upon plaintiffs by making the act of filing the point at which a claim is interposed for Statute of Limitations purposes
(see, Matter of Gershel v Porr,
This statutory scheme was criticized because it subjected plaintiffs to “the unnecessarily harsh consequences of a peremрtory dismissal and the cost of re-filing. Furthermore, the filing of proof of service, a * * * ministerial act, inappropriately took on jurisdictional significance” (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C306-b:2, at 477; see also, Mem of Off of Ct Admin No. 97-67R [hereinafter OCA Mem], reprinted in 1997 NY Legis Ann, at 318-319; see also, Senate Mem in Support of L 1997, ch 476, reprinted in 1997 McKinney’s Session Laws of NY, at 2456-2457 [identical to OCA Mem]). Thus, in 1997, the prеsent version of section 306-b, introduced at the request of the Chief Administrative Judge, was enacted (see, L 1997, ch 476, § 1).
I.
Leader v Maroney, Ponzini & Spencer
Plaintiff Susan Leader retained the law firm of Maroney, Ponzini & Spencer to represent her in a divorce action. Plaintiff claims that nearly three years after judgment was entered in the divorce proceedings, she first learned that her husband’s law license could have been valued as a marital asset, and was subject to a distributive award. Plaintiff commenced this legal malpractice action against her former attorneys pro se, by filing a summons with notice in the Westchester County Clerk’s office on March 5, 1998, аpproximately two months before expiration of the Statute of Limitations. Plaintiff then retained counsel to represent her. Although counsel knew that a summons and notice had been filed, he made no attempt to effectuate service on defendants before the 120-day period expired. Unaware that the amendment to CPLR 306-b became effective on Januаry 1, 1998, the attorney subsequently filed a second summons and a complaint in the County Clerk’s office on October 13, 1998. Defendants were served shortly thereafter. Since the second 120-day period from the action’s initial commencement did not expire until October 31, 1998 — although the Statute of Limitations had long passed — counsel mistakenly believed that defendants had been timely served in accordance with the former statute.
Supreme Court granted defendants’ motion to dismiss the second action on Statute of Limitations grounds noting, however, that under the newly-amended CPLR 306-b, the first action remained pending. Plaintiff then successfully moved for an extension of time to serve in the first action. Her attorney acknowledged that he was unaware of the amendment to CPLR 306-b.
The Appеllate Division affirmed, concluding that Supreme Court properly exercised its discretion under the circumstances
Scarabaggio v Olympia & York Estates
On July 29, 1999, three months before the expiration of the Statute of Limitations, plaintiff Kathryn Scarabaggio commenced this personal injury action for injuries sustained as the result of a slip and fall on stairs located on property allegedly owned by defendant Olympia & York Estates. Although another defendant was served, Olympia was not. Plaintiff’s process server attempted to serve Olympia at its last-known business address, but was unable to do so because Olympia had relocated. The process server did not inform plaintiff’s counsel of the failure. Plaintiff’s attorneys moved for the extension promptly after the error was discovered, just weeks after the 120-day period expired. The record reflects that Olympia was aware of plaintiff’s claim. In fact, Olympia’s insurer had communicated with plaintiff’s counsel in that regard.
Supreme Court granted plaintiff’s motion based on good cause and in the intеrest of justice. The Appellate Division, again over a two-Justice dissent, affirmed (
Plaintiff Rhoda Hafkin underwent a bilateral knee replacement at North Shore University Hospital. On January 22,
Supreme Court granted defеndant’s motion to dismiss the second action and denied as academic plaintiffs’ cross motion to extend their time to serve the summons and complaint in the first action. The Appellate Division affirmed (
In each case, the Appellate Division certified the following question: “Was the decision and order of this court properly made?” We now affirm.
II.
Defendants argue that, although the statute provides that an extension may be granted for “good cause” or in the
In interpreting a statute, the starting point in any analysis must be the plain meaning of the statutory language
(see, Rosner v Metropolitan Prop. & Liab. Ins. Co.,
Apрlying these fundamental principles of statutory construction here, it is clear that with the amendment to CPLR 306-b, the Legislature gave the courts two separate standards by which to measure an application for an extension of time to serve. The two are stated separately, joined by the word “or” (CPLR 306-b). They cannot be defined by use of the same criteria; otherwise, onе would have been sufficient. “The view that diligence is an across-the-board requirement * * * merges the two separate grounds for extension, because an exercise of reasonable diligence in attempting service would surely count as good cause” (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C306-b:3, at 483; see also, Siegel, NY Prac § 63, at 86-87 [3d ed] [a court may allow extension even when no good cause shown]).
Our analysis is buttressed by an examination of the legislative history behind the amendment. The New York State Bar Association’s Commercial and Federal Litigation Section Committee on Civil Practice Law and Rules characterized the interest of justice standard as “more flexible” than the good cause standard, specifically noting thаt “[s]ince the term ‘good cause’
More importantly, however, the legislative history is unequivocal that the inspiration for the new CPLR 306-b provision was its Federal counterpart. The revision was intended to offer New York courts the “same type of flexibility” enjoyed by Federal courts under rule 4 (m) of the Federal Rules of Civil Procedure (OCA Mem,
supra,
at 319). Rule 4 (m) similarly provides two alternative grounds for a plaintiff seeking an extension of time to serve process. The rule explicitly mandates that “if the plaintiff shows good cause for the failure, the court shall extend the time for service” (Fed Rules Civ Pro, rule 4 [m]). The rule also authorizes a second, unspecified discretionary basis for extension “even if there is no good cause shown” (1993 Advisory Comm Note, Fed Rules Civ Pro, rule 4 [m];
see, Boley v Kaymark,
The interest of justice standard requires a cаreful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the
The statute empowers a court faced with the dismissal of a viable claim to consider any factor relevant to the exercise of its discretion. No one factor is determinative — the calculus of the court’s decision is dеpendent on the competing interests of the litigants and a clearly expressed desire by the Legislature that the interests of justice be served.
III.
Leader v Maroney, Ponzini & Spencer
The Appellate Division applied the correct standard in evaluating plaintiffs motion to extend the time to serve. Plaintiff undeniably failed to make any attempt at service within the first 120 days after commencing the action pro se. Although рlaintiff eventually retained counsel prior to the expiration of the initial 120-day period, counsel erroneously believed that the former version of the statute was still operative. Thus, he incorrectly concluded that the first action was deemed dismissed and that plaintiff was entitled to commence a new action. The Statute of Limitations expired soon after the initial filing. Plaintiffs attorney made the motion to extend within the second 120-day period that would have been available under the prior statute. Furthermore, defendants made no showing of prejudice while plaintiff has shown a meritorious cause of action. We discern no abuse of discretion here.
Similarly, the Appellate Division considered all relevant factors in conсluding that an extension of time was justified in the interest of justice in this case. The process server hired by plaintiffs attorney made an effort to serve defendant, who had apparently relocated. However, the process server did not notify counsel that the attempt to effectuate service failed, and plaintiff proceeded with the action as if service had been made. Once the error was discovered, plaintiff promptly moved for an extension of time — within two months of the expiration of the Statute of Limitations and just one month after the 120-day period. Defendant failed to show any prejudice, particularly in light of some evidence in the record that it had actual notice of the action. Thus, we conclude that the Appellate Division correctly affirmed Supreme Court’s extension of the time to serve. Hafkin v North Shore University Hospital
Although the Appellate Division here reached a different result than in the other two cases, it again applied the correct standard by weighing all relevant factors, and did not abuse its discretion as a matter of law in concluding that an extension was not warranted under the cirсumstances. Although the Statute of Limitations had expired, plaintiffs offered no explanation for their failure to serve defendant after commencement of the first action. Nor did they offer any excuse for their delay in making the motion to extend the time for service nearly eight months after the 120-day service period expired. Plaintiffs simply noted that under the prior statutory рrovision, their second action would have been timely commenced and served. Notably, unlike in Leader, plaintiffs did not assert that they were unaware of section 306-b’s amendment. As the majority noted, even after plaintiffs were made aware of the issue and had another opportunity in the proceeding to place relevant evidence on the record, they failed to take advantage of it. Finally, defendants had no notice of plaintiffs’ claims for nearly three years after their accrual, leading to an inference of substantial prejudice.
Accordingly, in each of the three cases, the order of the Appellate Division should be affirmed, with costs. In Leader v Maroney, Ponzini & Spencer and Scarabaggio v Olympia & York Estates Co., the certified questions should be answered in the affirmative. In Hafkin v North Shore Univ. Hosp., the certified question should not be answered on the ground that it is unnecessary.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Rosenblatt and Graffeo concur.
In Hafkin v North Shore Univ. Hosp.: Order affirmed, etc.
Notes
. Defendant argues, for the first time, that the trial court had no jurisdiction in the second action to entertain plaintiffs’ cross motion for time to extend service in the first action because the second action stands alone. Plaintiffs do not explain thеir conduct, but counter that defendant’s argument is unpreserved and courts may grant complete relief to appealing parties. Plaintiffs may have thought the first action was “deemed dismissed” under the former version of CPLR 306-b. The Appellate Division did not expressly address this jurisdictional discrepancy, but simply used a double caption and characterized the actions as “relаted” (
. The Appellate Division dissenters in Leader and Scarabaggio concluded that reasonable diligence in effectuating service of process was a prerequisite to a court’s analysis under either standard. As support for their position they noted a Memorandum from the Office of Court Administration, a key proponent of the amendment, which stated, in part, that “extensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service” (see, OCA Mem, supra, at 319). They failed to note, however, that the Memorandum spoke in general terms and did not attempt to define the two standards. Indeed, the Memorandum explicitly acknowledged that the new statute would permit an extension “upon good cause shown or in the interest of justice” (id., at 318 [emphasis added]).
. Lower courts in this State have already applied some of these factors, and others, in determining interest of justice extensions under CPLR 306-b
(see, e.g., Beauge v New York City Tr. Auth.,