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Leader v. Maroney12/26/2000
OPINION & ORDER
Argued-February 18, 2000
1924B
The opinion of the court was delivered by: Krausman, J.
APPEAL by the defendants, in an action, inter alia, to recover damages for legal malpractice, from an order of the Supreme Court (Nicholas Colabella, J.), entered April 13, 1999, in Westchester County, which granted the plaintiff's motion pursuant to CPLR 306-b to extend her time to serve the summons and complaint, and denied their cross motion to dismiss the complaint on the ground of lack of personal jurisdiction.
Since 1992, CPLR 306-b has required that a summons and complaint or summons with notice be served upon a defendant within 120 days after the commencement of the action. In 1997 the Legislature amended CPLR 306-b to authorize a court to extend the 120-day service period for "good cause shown or in the interest of justice". On this appeal, we are asked to consider the circumstances under which it is appropriate for a court to exercise its discretion to extend a plaintiff's time to effectuate service pursuant to the amended statute. For the reasons which follow, under the circumstances of this case, we find that an extension of the plaintiff's time to serve was warranted in the interest of justice, and, accordingly, that the order appealed from should be affirmed.
In the fall of 1990, the plaintiff, Susan Leader, retained the defendant law firm to represent her in a divorce action. After nearly five years of litigation, the divorce action was settled in March 1995, and a judgment of divorce was entered on May 1, 1995. In early March 1998 the plaintiff retained new counsel to assist her in enforcing the judgment of divorce. The plaintiff claims that during her discussions with her new matrimonial attorney, she learned for the first time that she could have had her husband's law license valued during the pendency of the divorce action, and that she was entitled to a distributive share of this valuable asset. Since her new attorney was unwilling to represent her in a legal malpractice action, the plaintiff commenced this action against her former attorneys pro se, by filing a summons with notice in the Westchester County Clerk's office on March 5, 1998. The plaintiff then sought counsel to represent her in the legal malpractice action, and in April 1998, she found an attorney who was willing to review her case, and who subsequently agreed to represent her. Although the attorney retained in the malpractice action knew that a summons and notice had already been filed in the County Clerk's office, but that service on the defendants had not been effectuated, he was not aware that CPLR 306-b recently had been amended. Thus, counsel believed, in accordance with the former statute, that after the plaintiff's initial 120-day period to effect service expired on July 3, 1998, she would be entitled to purchase a new index number and file a new summons, thereby obtaining an additional 120-day period in which to effectuate service, and tolling the Statute of Limitations. The plaintiff's malpractice attorney subsequently filed a second summons and a complaint in the Westchester County Clerk's office on October 13, 1998, and the defendants were served on October 26, 1998. Since the second 120-day period would not expire until October 31, 1998, counsel believed that the defendants had been timely served.
The defendants promptly moved to dismiss the second action on the ground that it was barred by the Statute of Limitations, which had run after the commencement of the first action. The Supreme Court granted the motion without prejudice to motions by the parties in the first action to see
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