Hall v. Colle

In two related actions to recover damages for breach of a promissory note, the defendant appeals from an order of the Supreme Court, Suffolk County (Klein, J.), entered August 26, 2003, which denied his motion to dismiss Action No. 2 as time-barred, and granted the plaintiffs cross motion pursuant to CPLR 306-b for an extension of time to serve the summons in Action No. 1. Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s motion to dismiss Action No. 2, and substituting therefor a provision granting the motion, and dismissing Action No. 2; as so modified, the order is affirmed, without costs or disbursements. Upon consideration of the relevant factors, the Supreme Court properly concluded that it would be in the interest of justice to grant the plaintiff an extension of time to effect service in Action No. 1 (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). However, since it is undisputed that Action No. 2 was commenced after the expiration of the applicable statute of limitations, the Supreme Court should have granted the defendant’s motion to dismiss that action as time-barred (see Hafkin v North Shore Univ. Hosp., 279 AD2d 86, 88 [2000], affd sub nom. Leader v Maroney, Ponzini & Spencer, supra). Florio, J.P., Krausman, Cozier and Rivera, JJ., concur.