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Hafkin v. North Shore University Hospital12/26/2000
he 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". Here, in support of their cross motion to extend the time to serve the summons and complaint in Action No. 1, the plaintiffs proffered no explanation or excuse for their initial failure to have served the defendant within the 120-day period. Indeed, they completely ignored the question of why timely service was not made upon the defendant, a readily accessible hospital prominently located on the North Shore of Long Island. Further, they did not proffer any explanation or excuse for the delay of almost eight months between the expiration of the 120-day period and the date of their cross motion requesting an extension of time. Rather, the plaintiffs merely noted that, under the former version of CPLR 306-b, Action No. 2 would have been timely commenced and served, since former CPLR 306-b provided that where an action was not served within the relevant 120-day period, it was "deemed dismissed", but that such a dismissal commenced the running of a second 120-day period in which to commence and serve a new action, which action would be timely if the initial action was timely. However, in contrast to the plaintiff in Leader v Maroney, Ponzini & Spencer ( AD2d [Appellate Division Docket No. 1999-04596, decided herewith] ), the plaintiffs did not assert that they were unaware that CPLR 306-b had been amended before Action No. 1 was commenced or that they were proceeding in the erroneous belief that former CPLR 306-b was still in effect. Rather, the plaintiffs argued that, because their "service upon defendant was reasonably diligent" and the Statute of Limitations on their claims had otherwise run, the court should exercise its discretionary power under CPLR 306-b to grant an extension of time to serve the summons and complaint in Action No. 1 in the "interest of justice". We disagree and find no evidence that the interest of justice would be served by rewarding the plaintiffs' unexplained and unexcused complete lack of diligence.
The Legislature has not provided express guidance as to what factors are to be considered by the courts in exercising their discretionary power to grant an extension of time to serve process in an action under the interest of justice provision of CPLR 306-b. However, in a memorandum in support of the 1997 amendments, the Chief Administrative Judge, who proposed the amendments, asserted that they were intended to remedy certain unexpected consequences of the "deemed dismissed" provisions of (now former) CPLR 306-b, and to "accord New York courts the same type of flexibility [in granting extensions of time to serve an action] enjoyed by their Federal counterparts under section 4(m) of the Federal Rules of Civil Procedure" (Mem of Off of Ct Admin 97-67R, 1997 NY Legis Ann, at 319). In applying the proposed new standard, the Chief Administrative Judge noted, it was contemplated that, where the Statute of Limitations had otherwise run on a claim, "extensions 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). He further noted that, although the proposed revised statute did not require that a motion for an extension of time to serve process in an action be made within the 120-day period, the courts "would consider the plaintiffs' diligence in seeking an extension of time in making its decision as to whether the motion should be granted" (Mem of Off of Ct Admin 97-67R, 1997 NY Legis Ann, at 319).
In addition to this memorandum, there are several relevant general principles to be considered. The phras
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