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Hafkin v. North Shore University Hospital12/26/2000
e "interest of justice" implies conditions "which assist, or are in aid of or in the furtherance of, justice bring about the type of justice which results when law is correctly applied and administered" after consideration of the interests of both the litigants and society (United States v National City Lines, 7 FRD 393, 397; see, Bernstein v Strammiello, 202 Misc 823). A proper exercise of discretion results from principled and supported determinations as to what is just and equitable under the law and all of the relevant facts and circumstances of a case (see, Matter of Superintendent of Banks, 207 NY 11; Bernstein v Strammiello, supra; Newman, NY Appellate Prac § 4.05 ; see also, Langnes v Green, 282 US 531; United States v National City Lines, supra). Here, but for the filing of Action No. 1, the plaintiffs would be in exactly the same position as any other litigant who failed to timely file and serve an action. Thus, it must be determined whether this provides a principled and supported basis for allowing the plaintiffs an extension of time to serve the summons and complaint in Action No. 1. We find that it does not.
Contrary to the plaintiffs' assertions, they set forth no basis for finding that they exercised any diligence in attempting to serve the defendant with the summons and complaint in Action No. 1. Indeed, as noted, they offered no excuse or explanation for not serving the defendant in Action No. 1 (which was commenced on the day before the applicable Statute of Limitations ran) within the relevant 120-day time period of CPLR 306-b, or for not seeking an extension of such time for almost eight months after the period expired. Rather, their argument appears to be that they should be granted such relief because they otherwise served the defendant with process in Action No. 2 within the 240-day time frame of former CPLR 306-b (although only by days), and because the Statute of Limitations on their claims has otherwise run. However, had the Legislature intended either factor, alone or in tandem, to be dispositive, it could have so provided. Rather, each is merely a factor to be weighed with other factors, such as the explanation proffered for the failure to have made service within the time limited, the promptness with which an extension of time was sought after the expiration of the 120-day period, and the prejudice to the defendant. The listed factors are not intended to be exhaustive, but are merely factors to be considered in determining whether the facts and circumstances as a whole warrant discretionary relief pursuant to CPLR 306-b. Here, in light of the unexcused and unexplained delay on the part of the plaintiffs throughout, we find the fact that the summons and complaint in Action No. 2 were filed and served in compliance with former CPLR 306-b (which was, perhaps, a fortuitous event), and/or that the applicable Statute of Limitations has otherwise expired, an event due to no fault of the defendant, who did not receive notice of the plaintiffs' claims until almost three years after they accrued, is insufficient to warrant the granting of an extension of time to serve the defendants in Action No. 1 in the interest of justice (see, Adams v Allied Signal General Aviation Avionics, 74 F3d 882 [under Rule 4(m) of the Federal Rules of Civil Procedure, expiration of Statute of Limitations, although a factor, is not determinative of whether to grant discretionary extension of time to serve]; Espinoza v United States, 52 F3d 838 [same]; Petrucelli v Bohringer & Ratzinger, 46 F3d 1298 [same] ).
Finally, we disagree with our dissenting colleagues that the matter should be remitted for further proceedings. This court is vested with the same power and discretion as the Supreme Court, whi
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