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Virginia M. Henneberry v. Leon Baer Borstein

January 17, 2012

VIRGINIA M. HENNEBERRY, PLAINTIFF-APPELLANT,
v.
LEON BAER BORSTEIN, ET AL.,
DEFENDANTS-RESPONDENTS.



Henneberry v Borstein

Decided on January 17, 2012

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., Tom, Catterson, Richter, Roman, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 15, 2010, which granted defendants' motions to dismiss the complaint (the 2007 Action) to the extent of dismissing the complaint pursuant to CPLR 3211(a)(8) without prejudice, and granted plaintiff's cross motion for, inter alia, an extension of time to effect service to the extent of permitting plaintiff to serve within 30 days of a copy of the order with notice of entry "a proper summons and complaint . . . with a new index number," unanimously modified, on the law, to the extent of denying defendants' motion and granting plaintiff an extension of time to effect service pursuant to CPLR 306-b, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered January 20, 2010, which granted defendants' motions to dismiss the complaint (the 2009 Action) pursuant to CPLR 3211(a)(4), unanimously dismissed, without costs, as academic. Order, same court (Charles E. Ramos, J.), entered October 25, 2010, which granted defendants' motion to dismiss the complaint (the 2010 Action) on statute of limitations grounds, unanimously reversed, on the law, without costs, the motion denied, and the complaint deemed to be an amended complaint in the 2007 Action. Appeal from order, same court (Charles E. Ramos, J.), entered March 4, 2011, which discontinued the 2010 Action, unanimously dismissed, without costs, as abandoned.

Plaintiff, proceeding pro se, brought the 2007 Action against defendant attorneys and their firm, asserting claims of legal malpractice and breach of fiduciary duty in their representation of her in an arbitration against a former employer. That arbitration concluded on December 4, 2004 with a decision adverse to plaintiff. Plaintiff commenced the 2007 Action by filing a summons with notice on November 19, 2007, just under a month before the expiration of the applicable three-year statute of limitations (see CPLR 214[6]).

On March 13, 2008, within 120 days of the filing of the summons with notice, plaintiff arranged for a licensed process server to serve defendants in accordance with CPLR 306-b. She subsequently filed two affidavits of service with the court. On April 1, 2008, 19 days later, defendants submitted a notice of appearance and a demand for a complaint. Plaintiff served a summons and complaint upon defendants on April 28, 2008.

On November 7, 2008, approximately six months later, after having sought and obtained numerous adjournments, defendants moved to dismiss the 2007 Action, on a number of grounds, including lack of personal jurisdiction. Plaintiff, now represented by counsel, cross moved for, inter alia, an extension of time to effect service pursuant to CPLR 306-b.

While the parties' motions were pending, plaintiff filed the 2009 Action, which contained substantially the same substantive claims. She did so to protect her claims in the event that the 2007 Action was terminated on a ground subject to revival under CPLR 205(a). Next, on June 19, 2009, defendants moved to dismiss the 2009 Action, arguing that there was an identical action pending before the court (CPLR 3211[a][4]). On July 23, 2009, the court held a traverse hearing regarding the validity of the March 13, 2008 service.

In the first order appealed from, Justice Tingling dismissed the 2007 Action for lack of personal jurisdiction (based on improper service), without prejudice, and granted plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b, on condition that she purchase a new index number and properly serve a summons and complaint within 30 days after service of the order with notice of entry. In the second order appealed from, issued contemporaneously with the first, Justice Tingling dismissed the 2009 Action based upon the pendency of another identical action (CPLR 3211[a][4]).

Following the court's directive in the first order, on February 11, 2010 plaintiff commenced the 2010 Action. In the third order appealed from, Justice Ramos dismissed that action as untimely. Plaintiff challenges each of these three orders.

The unintended effect of the disposition of the first two orders appealed from was to deprive plaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure to effectively complete the ministerial act of properly serving defendants within 120 days of the filing of notice. This was error.

CPLR 306-b provides, as relevant: "Service of the summons and complaint, summons with notice, . . . shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, . . . . If service is not made upon a defendant within the time period provided in this section, the 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." The statute requires that a defendant challenging service move to dismiss on that ground (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]). In deciding such a motion, the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. Here, defendants made their motions after the statute of limitations had expired. In these circumstances, the court's options were limited to either dismissing the action outright, or extending the time for plaintiff to properly effect service.

The first order appealed from dismissed the action, without prejudice to the filing of a new action, and granted plaintiff's cross motion for an extension of time to effect service. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, later dismissed as untimely (Matter of Rodamis v Cretan's Assn Omonoia, 22 AD3d 859, 860 [2005] [court cannot grant CPLR 306-b extension where action has been dismissed and statute of limitations has expired]; see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2000]). The court should have limited its ruling in the first order on appeal to ...


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