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Leader v. Maroney12/26/2000
ort prepared by the New York State Bar Association's Committee on Civil Practice Law and Rules, which is included in the amended statute's bill jacket, it was noted that " ince the term 'good cause' does not include conduct usually characterized as 'law office failure' * * * proposed CPLR 306-b provides for an additional and broader standard, i.e. the 'interest of justice', to accommodate late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant. The availability of this more flexible standard allows a case to go forward without a party needlessly having to commence a new action, pay an additional fee and make a motion to consolidate" (1997 Report of Comm. on CPLR-N.Y. State Bar Assn. No. 88, at 4). The report also noted that although the new provision grants the court the discretion to extend the service period in cases where the Statute of Limitations expired after the initial filing, this would not impermissibly extend the time limited by law for the commencement of an action in violation of CPLR 201. In this regard, the report explained that in the wake of the 1992 amendments, "once a summons and complaint is filed, the claim has been interposed for statute of limitations purposes. Whether or when a defendant is served is irrelevant to a determination as to whether the statute of limitations has been met" (1997 Report of Comm. on CPLR-NY State Bar Assn. No. 88, at 5).
Guided by the legislative history of the statute and a review of analogous Federal case law, the Appellate Division, Fourth Department, in the recent case of Busler v Corbett (259 AD2d 13), concluded that the plaintiff's motion to extend her time to serve the defendants nunc pro tunc pursuant to CPLR 306-b should have been granted. In that case, the plaintiff commenced a personal injury action against the defendants six days before the expiration of the Statute of Limitations. Both defendants were served in August 1998, approximately 28 days after the expiration of the 120-day service period. The Supreme Court denied the plaintiff's motion to extend her time to serve the defendants nunc pro tunc, and granted the defendants' cross motion to dismiss the complaint. The Supreme Court concluded that the plaintiff had not established good cause for her failure to serve the defendants before the expiration of the Statute of Limitations, and declined to grant the extension in the interest of justice on the ground that the defendants would be prejudiced if the action was permitted to proceed after the expiration of the limitations period. The Appellate Division, Fourth Department, agreed that the plaintiff failed to demonstrate good cause for an extension of time to serve because her process server had not made diligent efforts to effectuate timely service. However, it reversed the order and granted the plaintiff's motion in the interest of justice, noting that she established that because the Statute of Limitations had expired, her claim would be extinguished without the extension, the defendants had been served only 28 days after the expiration of the limitations period, and she moved promptly for an extension nunc pro tunc. The court concluded that in the absence of demonstrable prejudice to the defendants, it would be unjust to deprive the plaintiff of the opportunity to prove her claims against them.
Busler v Corbett (supra) is consistent with case law interpreting Rule 4(m) of the Federal Rules of Civil Procedure, the Federal counterpart to CPLR 306-b. Under Rule 4(m), courts must grant an extension of time to serve where the plaintiff demonstrates "good cause", a standard that is "measured against the plaintiff's reasonable efforts to effect service and the prejudice to the de
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