Peguero v. Finnie

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated July 13, 2006, as granted the plaintiffs’ cross motion for an extension of time pursuant to CPLR 306-b to serve the summons and complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The instant action was commenced by filing a summons and complaint approximately seven months after the accident. The purported service of process in October 2001 by delivery and mail pursuant to CPLR 308 (2) at premises in East Elmhurst owned by the defendants until March 2002, but where the defendants neither resided nor had their place of business, was improper. However, the plaintiff moved for relief pursuant to CPLR 306-b immediately after she learned that the defendants 946 were contesting the validity of service and submitted proof that her claim was meritorious. Further, the Supreme Court noted that the plaintiff “diligently pursued this action” and each time the plaintiff sought court intervention, “defendants were noticed at the East Elmhurst address.” Under the circumstances of this case, the determination of the Supreme Court was a proper exercise of its discretion (see Slate v Schiavone Constr. Co., 4 NY3d 816 [2005]; Baione v Zambrano, 22 AD3d 698, 699 [2005]). Schmidt, J.P., Goldstein, Angiolillo and McCarthy, JJ., concur.