Norstar Bank v. Wittbrodt

OPINION OF THE COURT Harold J. Hughes, J. The motion of the plaintiff for an order pursuant to CPLR 2004 extending its time to make service under CPLR 306-b (a) by 120 days from February 4, 1993, and file an affidavit of service within that period without the action being deemed dismissed, is granted. The action was commenced on October 7, 1992, by the filing of a summons and verified complaint with the Albany County Clerk. Service was not made within the 120-day period provided for in subdivision (a) of CPLR 306-b. Plaintiff seeks to avoid the automatic dismissal provision of subdivision (b) of [261] section 306-b by obtaining an extension of time pursuant to CPLR 2004. The reason for seeking to avoid the automatic dismissal provision is that the plaintiff does not want to have to spend another $170 to obtain a new index number. Commentator Alexander (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C306-b:l, 1993 Pocket Part, at 48-49) states: "Whether CPLR 2004 provides sufficient authority for a court, on motion, to extend the time limits of CPLR 306-b (a) remains to be seen. The diligent plaintiff who is experiencing hardship in effecting service of process within 120 days of commencement may present a compelling case for such an extension. At least two limitations on the use of § 2004 [motion] are apparent. First, the motion would have to be made prior to the expiration of subdivision (a)’s time limits. Otherwise, the action will have already been deemed dismissed, and no action within which to make the 2004 motion would be pending. The only remedy would be commencement of a new action. Second, CPLR 2004 is subject to the constraint of CPLR 201 and therefore cannot be used if the court’s extension would in effect give longer life to the statute of limitations than that which is already authorized, i.e., a total of 240 days from commencement (120 days under subdivision (a) of § 306-b plus a second 120 days under subdivision (b))”. Here, the motion was made prior to the expiration of the 120-day period, and granting the motion will not serve to extend the Statute of Limitations. Consequently, there is no good reason not to grant the motion.