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Leader v. Maroney12/26/2000
h H. MILLER, J., concurs:
I believe that it is an improvident exercise of discretion to extend the plaintiff's time to serve the defendants with the summons and complaint, and would reverse the order appealed from.
While I concur with the majority's historical analysis of the remedial purposes leading to the enactment of the current version of CPLR 306-b, I do not believe the majority has correctly interpreted the extent of the relief permitted by the statute and do not find the interest of justice is served by an extension of time under the circumstances of this case.
The intent of the Legislature, as ascertained from the memorandum in support, is that extensions of time should be liberally granted in the interest of justice where the Statute of Limitations has run. However, it is not an unfettered grant of discretion and clearly was not intended to reward laxness on the part of plaintiffs or to automatically extend the period for service of process in every case. " xtensions of time should be liberally granted whenever plaintiffs have been reasonably diligent in attempting service" (Mem of Off of Ct Admin 97-67R, 1997 NY Legis Ann, at 319). Here, the plaintiff failed to offer a reasonable explanation or excuse for the failure to attempt any service within the 120-day period following the filing of the initial summons, nor did the plaintiff promptly move for an extension of time even after becoming aware of the failure (see, Estate of Jervis v Teachers Ins. & Annuity Assn., 181 Misc 2d 971).
While Federal courts have considered the expiration of the Statute of Limitations as a factor to be considered in favor of a plaintiff, those courts have not gone as far as the majority does here by finding that the expiration of the Statute of Limitations itself is sufficient to warrant a discretionary extension of time under Rule 4(m) of the Federal Rules of Civil Procedure (see, Astarita v Urgo Butts & Co., US Dist Ct, SD NY, June 10, 1997, Leisure, J.; Bakal v Ambassador Const., US Dist Ct, SD NY, July 28, 1995, Martin, J.; National Union Fire Ins. Co. of Pittsburgh, Pa. v Sun, US Dist Ct, SD NY, Aug. 25, 1994, Preska, J.). Here, even the majority finds no other circumstances weighing in favor of an extension except that the plaintiff has a potentially meritorious cause of action and that the defendants purportedly will suffer no prejudice. Accordingly, I would reverse the order appealed from, deny the motion, grant the cross motion, and dismiss the complaint.
ORDERED that the order is affirmed, with costs.
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