Leader v. Maroney12/26/2000
fendant from the delay" (AIG Managed Mkt. Neutral Fund v Askin Capital Mgt., L.P., 197 FRD 104, 108). Although a delay in service resulting from neglect or mistake by a litgant's attorney does not constitute good cause (see, AIG Managed Mkt. Neutral Fund v Askin Capital Mgt., L.P., supra; Myers v Secretary of Dept. of Treasury, 173 FRD 44, 47), Rule 4(m) also affords courts the discretionary authority to extend a plaintiff's time to serve in the interest of justice (see, Boley v Kaymark, 123 F3d 756, 758; AIG Managed Mkt. Neutral Fund v Askin Capital Mgt., L.P., supra). In evaluating whether an extension should be granted in the interest of justice, Federal courts have "consistently considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff [because] dismissal under these circumstances would extinguish potentially meritorious claims without there being an opportunity to have them adjudicated on the merits" (AIG Managed Mkt. Neutral Fund v Askin Capital Mgt., L.P., supra, at 109-110).
In the case at bar, there is no evidence that the plaintiff, who commenced this action pro se, actually attempted to serve the defendants within the initial 120-day period. Although the plaintiff retained counsel to represent her in the malpractice action before the expiration of the 120-day period, counsel erroneously believed that the first action would be deemed dismissed under former CPLR 306-b and that the plaintiff was entitled to a second 120-day period in which to file a new action. In reliance upon the former statute, the plaintiff's attorney filed a new summons and complaint, and effected service within the second 120-day period. This would have been entirely proper under the former statute, and the new action would have been deemed timely interposed for Statute of Limitations purposes. While we agree with our dissenting colleagues' position that a mistake of this nature cannot be deemed sufficient to satisfy the "good cause" standard, their view does not take full appreciation of the fact that the courts have been vested with the discretion, in the interest of justice, to extend a plaintiff's time to serve. Indeed, it has been observed that in cases such as the one before us, where the Statute of Limitations has expired after commencement of the action by filing, the courts should take into account the drafters' intent that motions to extend be liberally granted after the expiration of the Statute of Limitations. Under the facts of this case, liberality would seem particularly appropriate as no more than 240 days have elapsed since the expiration of the Statute of Limitations, since the original version of CPLR 306-b would have allowed the plaintiffs to recommence and serve process within that period of time (see, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 306-b, at 173).
In keeping with the Legislative intent to liberally grant extensions in cases where, as here, the Statute of Limitations expired after filing, and in view of the fact that the plaintiff has a potentially meritorious cause of action and the defendants made no showing of prejudice, we find that the Supreme Court properly exercised its discretion in granting the plaintiff's motion for an extension of time to effect service in the first action (see, Ageyeva v Always Beautiful, Inc., AD2d [2d Dept., July 3, 2000]; Salamon v Charney, 269 AD2d 256).
Accordingly, the order appealed from should be affirmed.
BRACKEN, J.P., and SMITH, JJ., concur.
SCHMIDT, J., dissents and votes to reverse the order appealed from, deny the motion, and grant the cross motion to dismiss the complaint with the following memorandum, in whic
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