SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1001
CA 11-00743
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.
CONNIE MOSS, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
SHIRLEY A. BATHURST, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JEFFREY F.
BAASE OF COUNSEL), FOR DEFENDANT-APPELLANT.
MARK D. GROSSMAN, NIAGARA FALLS, FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Niagara County (Paula
L. Feroleto, J.), entered December 9, 2010 in a personal injury
action. The order denied the motion of defendant Shirley A. Bathurst
to dismiss the complaint and granted the cross motion of plaintiff for
an extension of time to serve process on Shirley A. Bathurst.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this action to recover damages for injuries she
allegedly sustained in a motor vehicle accident, Shirley A. Bathurst
(defendant) appeals from an order that denied her motion to dismiss
the complaint against her and granted plaintiff’s cross motion to
extend the time in which to serve defendant. We affirm.
“If service is not made upon a defendant within the time provided
in [CPLR 306-b], the court, upon motion, shall dismiss the action
without prejudice as to that defendant, or upon good cause shown or in
the interest of justice, extend the time for service” (CPLR 306-b).
It is well settled that the determination to grant “[a]n extension of
time for service is a matter within the court’s discretion” (Leader v
Maroney, Ponzini & Spencer, 97 NY2d 95, 101). We agree with defendant
that plaintiff failed to establish good cause for an extension of time
for service upon defendant. Nevertheless, that determination is not
dispositive of the issue before us. “[A]lthough law office failure
and the lack of reasonable diligence in effectuating service generally
do not constitute good cause, the interest of justice standard of the
statute [is] a separate, broader and more flexible provision [that
may] encompass a mistake or oversight as long as there was no
prejudice to the defendant” (id. at 102; see Mead v Singleman, 24 AD3d
1142, 1143-1144). After weighing the relevant factors, including the
“expiration of the [s]tatute of [l]imitations, the meritorious nature
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CA 11-00743
of the cause of action, the length of delay in service, the promptness
of . . . plaintiff’s request for the extension of time, and prejudice
to defendant” (Leader, 97 NY2d at 105-106), and noting that no one
factor is more important than the others, we reject defendant’s
contention that Supreme Court abused its discretion in denying her
motion and granting plaintiff’s cross motion.
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court