Hafkin v. North Shore University Hospital12/26/2000
ch discretion may be independently exercised (see, Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; Broida v Bancroft, 103 AD2d 88). Here, the plaintiffs, aware of the issues to be addressed, having raised them, had the opportunity to place all relevant evidence on the record made before the Supreme Court. Remittitur of the matter in order to afford them an additional opportunity to supplement the record is not warranted.
Accordingly, the order appealed from should be affirmed.
THOMPSON and SCHMIDT, JJ., concur.
FLORIO, J., dissents and votes to modify the order appealed from by deleting the provision thereof denying that branch of the cross motion which was, in effect, to extend the plaintiffs' time to serve the summons and complaint in Action No. 1 as academic, and to remit the matter to the Supreme Court, Nassau County, for further proceedings in accordance with the dissent, and to otherwise affirm the order, with the following memorandum, in which KRAUSMAN, J., concurs.
I believe that the record is not sufficiently developed to enable this court to properly determine whether the plaintiffs should be afforded an extension of time to serve the defendants in Action No. 1. Accordingly, I would remit this matter to the Supreme Court, Nassau County, to consider further submissions, and exercise its discretion as to whether an extension would be warranted in the interest of justice.
In this action, which was commenced less than one month after the amended CPLR 306-b went into effect, it appears that the plaintiffs' attorney was unaware that the "deemed dismissed" feature of the prior statute had been eliminated, and that the plaintiffs would no longer have a second 120-day period in which to commence a new action and complete service of process. With no caselaw to guide the parties in the first few months after the new provision went into effect, the plaintiffs' attorney failed to fully articulate a basis for requesting an extension of time to serve in the interest of justice. Moreover, the Supreme Court denied the plaintiffs' cross motion for an extension of time to serve in Action No. 1 as academic, without considering the issue of whether an extension should be granted in the interest of justice as permitted by the amended CPLR 306-b. Considering the factual similarities between this case and the case of Leader v Maroney, Ponzini & Spencer ( AD2d [Appellate Division Docket No. 1999-04596, decided herewith] ), the Legislative intent to liberally allow extensions of time where the Statute of Limitations has expired after filing, and the apparent lack of prejudice suffered by the defendant from the delay in effectuating service, under the circumstances of this case, I believe that it is appropriate to permit the parties to further develop the record and to allow the Supreme Court to exercise its discretion and determine the plaintiffs' cross motion for an extension of time on the merits (see generally, Matter of Nationwide Ins. Co. v Miscione, 267 AD2d 312; Geiger v American Tobacco Co., 252 AD2d 474; Aini v Garau, 244 AD2d 442; see also, Boley v Kaymark, 123 F3d 756, 758). Accordingly, I would modify the order appealed from and remit the matter to the Supreme Court, Nassau County.
ORDERED that the order is affirmed, with costs.
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