PNC Bank, Nat'l Ass'n v. Sarfaty

2024 NY Slip Op 01324

PNC Bank, National Association, etc., respondent, v. Eliahu Sarfaty, appellant, et al., defendants.

No. 2021-06752, Index No. 35761/12

Supreme Court of New York, Second Department

March 13, 2024

Jason Lowe, New York, NY, for appellant.

JOSEPH J. MALTESE, J.P., WILLIAM G. FORD, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Eliahu Sarfaty appeals from stated portions of an order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated August 11, 2021. The order, inter alia, granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Eliahu Sarfaty.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

By summons and complaint filed on October 19, 2012, the plaintiff commenced this action against, among others, Eliahu Sarfaty to foreclose a residential mortgage. On or about November 29, 2012, Sarfaty interposed an answer, asserting an affirmative defense of lack of personal jurisdiction due to improper service of process.

By notice of motion dated January 10, 2013, Sarfaty moved to dismiss the complaint insofar as asserted against him contending, among other things, pursuant to CPLR 3211(a)(8) that there was a lack of personal jurisdiction due to improper service of process. Over two years later, after certain settlement and loan modification negotiations occurred, and with Sarfaty's motion to dismiss still pending and undecided, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against Sarfaty and for an order of reference.

In an order dated January 3, 2017, the Supreme Court, inter alia in effect, held in abeyance that branch of Sarfaty's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction due to improper service of process and directed that a traverse hearing be held to determine whether Sarfaty was properly served. Following the traverse hearing in an order dated July 26, 2018 (hereinafter the dismissal order), the court granted that branch of Sarfaty's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction due to improper service of process and denied, as academic, the plaintiff's motion for summary judgment.

On or about February 7, 2020, the plaintiff moved to vacate the relevant portion of the dismissal order and pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Sarfaty. On August 12, 2020, while the plaintiff's motion was still pending and undecided, the Rockland County Clerk, upon the dismissal order, entered judgment dismissing the action. In the order appealed from, the Supreme Court inter alia, vacated the judgment and granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Sarfaty.

Pursuant to CPLR 306-b, a court may exercise its discretion to extend a plaintiff's time to effectuate service for good cause shown or in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104-105; LaSalle Bank, NA v Ferrari, 210 A.D.3d 976, 977). "'"Good cause" and "interest of justice" are two separate and independent statutory standards'" (LaSalle Bank, NA v Ferrari, 210 A.D.3d at 977, quoting BAC Home Loans Servicing, L.P. v Rogener, 171 A.D.3d 996, 998).

"'To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service'" (LaSalle Bank NA v Ferrari, 210 A.D.3d at 977, quoting Bumpus v New York City Tr. Auth., 66 A.D.3d 26, 31). The interest of justice standard requires a court to carefully analyze the factual setting of the case and to balance the competing interests presented by the parties (see Leader v Maroney, Ponzini & Spencer, 97 N.Y.2d at 105; LaSalle Bank, NA v Ferrari, 210 A.D.3d at 978). "'Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to...