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Tinson v. 512 West 29th Street

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 26, 2009

ROHAN TINSON, PLAINTIFF-RESPONDENT,
v.
512 WEST 29TH STREET, LLC ALSO KNOWN AS STEREO CLUB, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 1, 2008, which, to the extent appealed from, denied defendant's motion to dismiss the action, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Andrias, Buckley, Acosta, JJ.

119257/06

The summons and complaint were filed on December 29, 2006, giving plaintiff until April 28, 2007, to effect service (CPLR 306-b). Proper service was made on the Secretary of State on March 30, after working out some procedural defects in the papers. On April 4, plaintiff's counsel consented to a 30-day extension for defendant to answer the complaint. Instead, defendant moved on May 2 to dismiss for failure to serve within the statute of limitations, which had expired on December 31, 2006.

Plaintiff demonstrated diligent efforts to serve defendant in a timely fashion. But for the courtesy extension to opposing counsel, he would have effectuated service within 120 days of the timely filing of the complaint. The court's ruling was a proper exercise of discretion in the interest of justice (see de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090326

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