Preview
FILED: NEW YORK COUNTY CLERK 08/28/2018 03:55 PM INDEX NO. 652792/2017
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/28/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------- X
BANKERS STANDARD INSURANCE COMPANY
as subrogee ofRUSSELL UMPHENOUR and
Index No.: 652792/2017
DEBRA LONDON,
AFFIRMATION IN SUPPORT
Plaintiff, OF MOTION TO EXTEND
TIME TO SERVE
v. SUPPLEMENTAL $UMMONS
AND AMENDED COMPLAINT
NORTH MOORE NYC PROPERTY, INC., AND
NJ PAZ PAINTING SERVICES, INC.,
Defendant.
------------------------- -------------------------------X
Robert A. Stern, Esq., under penalties of perjury affirms as follows:
l . I am an attorney at law and a Partner with the law firm of Clausen Miller P.C., the
attorneys of record for the Plaintiff in the within action. As such, I am fully familiar with the
facts and circumstances of this case and the proceedings heretofore had herein through a review
of the file maintained by my office.
2. I submit this Affirmation in support of Plaintiff's Motion for an Order:
(a) Pursuant to CPLR § 306-b, granting Plaintiff an Order Extending the Time to Serve
Defendant by 120 days from the date of entry of an Order deciding this Motion;
(b) Granting Plaintiff such other, further and different relief as this Honorable Court
may deem just, proper and equitable.
3. Plaintiff BANKERS STANDARD INSURANCE COMPANY as subrogee of
RUSSELL UMPHENOUR and DEBRA LONDON (hereinafter "Plaintiff") cerññ1enced this
action by filing a Summons and Complaint on or about May 23, 2017.
4. On August 4, 2017, Plaintiff effectuated service on the defendant, North Moore
NYC Property, Inc. (hereinafter "North Moore"). North Moore's time to Answer has been
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extended until October 3, 2018.
5. On May 3, 2018, Plaintiff filed a Supplemental Summons and Amended
Complaint. A Copy of the Supplemeñtal Summons and Amended Complaint is attached hereto
"A."
as Exhibit
6. Plaintiff insured its subrogors under a policy of insurance for their condominium
located at 25 N. Moore St., Unit 9B, New York, NY 10013 (hereinafter the "Premises").
7. Plaintiff alleges that on or about September 11, 2015, water leaked down from the
HVAC unit of Unit 10B, the condominium unit immediately above the Premises, and caused
severe water and mold damage within the Premises.
8. Plaintiff alleges that Defendants were responsible for improperly maintaining and
repairing the HVAC unit in Unit 10B so as to avoid damage to the Premises.
9. As a result of the water and mold damage to the Premises, Plaintiff's subrogors
presented a claim for Sixty-Eight Thousand Eight Hundred, Sixty Dollars and Seventy-Nine Cents
($68,860.79).
10. Plaintiff indemnified its subrogors in the amount of $68,860.79, pursuant to its
policy of insurance for the Premises.
subrogors'
11. Plaintiff is subrogated to its rights of recovery against Defendants.
12. Personal service was attempted on the defendant, NJ Paz Painting Services, Inc.
(hereinafter "NJ Paz") and its owner, Frank Mattioli, at its last known address, 217 Woodward
Road, Manalapan, New Jersey 07726.
13. The Process Server was unable to effectuate service and was informed that Mr.
"B."
Mattioli had moved. A copy of the email correspondence is attached hereto as Exhibit
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14. Personal service was attempted again on NJ Paz at itslast known business address,
164 ½ Newman Springs Road East, Red Bank, New Jersey 07701. However, the Process Server
was informed that NJ Paz moved from that location approximately six (6) months ago or went out
"C."
of business. A copy of the email correspondence is attached hereto as Exhibit
15. CPLR § 306-b provides that, "[i]f service is not made upon a defendant within the
time provided in this section, the court, upon motion . . . upon good cause shown or in the interest
service."
of justice, extend time for
16. The Court of Appeals opined that, "the Legislature gave the courts two separate
standards by which to measure an application for an extension of time to serve": (1) good cause
justice."
shown or (2) in the interest of Leader v. Maroney, 97 N.Y.2d 95, 104 (2001).
cause"
17. To apply for an extension under the "good standard, a plaintiff must show a
reascriably diligent effort was undertaken to complete service. See id. "Good cause will not exist
where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent
service."
effort at Bumpus v. N.Y City Tr. Auth., 66 A.D.3d 26, 32 (2d Dep't 2009). Good cause,
however, may be "found to exist where the plaintiff's failure to timely serve process is a result of
control."
circumstances beyond the plaintiff's Id
18. Here, Plaintiff has certainly made a diligent effort to locate and timely serve NJ Paz
pursuant to CPLR § 31 1.
justice"
19. Furthermore, to apply for an extension under the broader "interest of
standard, the court weighs a number of factors, including: (1) the presence or absence of reasonable
diligence; (2) whether the statute of limitations on the claim has expired; (3) the meritorious nature
of the Cause of Action; (4) the promptness of the request for more time; (5) and the prejudice to
defendants. See Leader, supra, 97 N.Y.2d at 106.
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20. In the present matter, Plaintiff has attempted to personally serve NJ Paz at various
addresses found online before the statute of limitations expires on September 11, 2018. However,
through no fault of Plaintiff, NJ Paz consistently changes and/or moves its business address,
making itextremely difficult for Plaintiff to serve NJ Paz. Plaintiff requires additional time to
serve NJ Paz in order to retain a skip tracing service to locate NJ Paz's current business address.
diligence"
21. While no single factor is determinative, if "reasonable is found, then a
plaintiff satisfies both standards. Id. Most importantly, public policy favors resolution of cases
on the merits, and Plaintiff's diligent efforts to effectuate service on NJ Paz warrant relief under
CPLR § 306-b.
22. Based upon the foregoing, Plaintiff respectfully requests an extension of time to
serve NJ Paz for 120 days from the date of the Court's Order.
Dated: New York, New York
August 28, 2018
Respectfully submitted,
By:
Itobert A. Stern, Esq.
CLAUSEN MILLER P.C.
39th
28 Liberty Street, FlOOr
New York, New York 10005
(212) 805-3900
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Preview
FILED: NEW YORK COUNTY CLERK 08/28/2018 03:55 PM INDEX NO. 652792/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/28/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------- X BANKERS STANDARD INSURANCE COMPANY as subrogee ofRUSSELL UMPHENOUR and Index No.: 652792/2017 DEBRA LONDON, AFFIRMATION IN SUPPORT Plaintiff, OF MOTION TO EXTEND TIME TO SERVE v. SUPPLEMENTAL $UMMONS AND AMENDED COMPLAINT NORTH MOORE NYC PROPERTY, INC., AND NJ PAZ PAINTING SERVICES, INC., Defendant. ------------------------- -------------------------------X Robert A. Stern, Esq., under penalties of perjury affirms as follows: l . I am an attorney at law and a Partner with the law firm of Clausen Miller P.C., the attorneys of record for the Plaintiff in the within action. As such, I am fully familiar with the facts and circumstances of this case and the proceedings heretofore had herein through a review of the file maintained by my office. 2. I submit this Affirmation in support of Plaintiff's Motion for an Order: (a) Pursuant to CPLR § 306-b, granting Plaintiff an Order Extending the Time to Serve Defendant by 120 days from the date of entry of an Order deciding this Motion; (b) Granting Plaintiff such other, further and different relief as this Honorable Court may deem just, proper and equitable. 3. Plaintiff BANKERS STANDARD INSURANCE COMPANY as subrogee of RUSSELL UMPHENOUR and DEBRA LONDON (hereinafter "Plaintiff") cerññ1enced this action by filing a Summons and Complaint on or about May 23, 2017. 4. On August 4, 2017, Plaintiff effectuated service on the defendant, North Moore NYC Property, Inc. (hereinafter "North Moore"). North Moore's time to Answer has been 459032.1 1 of 4 FILED: NEW YORK COUNTY CLERK 08/28/2018 03:55 PM INDEX NO. 652792/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/28/2018 extended until October 3, 2018. 5. On May 3, 2018, Plaintiff filed a Supplemental Summons and Amended Complaint. A Copy of the Supplemeñtal Summons and Amended Complaint is attached hereto "A." as Exhibit 6. Plaintiff insured its subrogors under a policy of insurance for their condominium located at 25 N. Moore St., Unit 9B, New York, NY 10013 (hereinafter the "Premises"). 7. Plaintiff alleges that on or about September 11, 2015, water leaked down from the HVAC unit of Unit 10B, the condominium unit immediately above the Premises, and caused severe water and mold damage within the Premises. 8. Plaintiff alleges that Defendants were responsible for improperly maintaining and repairing the HVAC unit in Unit 10B so as to avoid damage to the Premises. 9. As a result of the water and mold damage to the Premises, Plaintiff's subrogors presented a claim for Sixty-Eight Thousand Eight Hundred, Sixty Dollars and Seventy-Nine Cents ($68,860.79). 10. Plaintiff indemnified its subrogors in the amount of $68,860.79, pursuant to its policy of insurance for the Premises. subrogors' 11. Plaintiff is subrogated to its rights of recovery against Defendants. 12. Personal service was attempted on the defendant, NJ Paz Painting Services, Inc. (hereinafter "NJ Paz") and its owner, Frank Mattioli, at its last known address, 217 Woodward Road, Manalapan, New Jersey 07726. 13. The Process Server was unable to effectuate service and was informed that Mr. "B." Mattioli had moved. A copy of the email correspondence is attached hereto as Exhibit 459032.1 2 of 4 FILED: NEW YORK COUNTY CLERK 08/28/2018 03:55 PM INDEX NO. 652792/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/28/2018 14. Personal service was attempted again on NJ Paz at itslast known business address, 164 ½ Newman Springs Road East, Red Bank, New Jersey 07701. However, the Process Server was informed that NJ Paz moved from that location approximately six (6) months ago or went out "C." of business. A copy of the email correspondence is attached hereto as Exhibit 15. CPLR § 306-b provides that, "[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion . . . upon good cause shown or in the interest service." of justice, extend time for 16. The Court of Appeals opined that, "the Legislature gave the courts two separate standards by which to measure an application for an extension of time to serve": (1) good cause justice." shown or (2) in the interest of Leader v. Maroney, 97 N.Y.2d 95, 104 (2001). cause" 17. To apply for an extension under the "good standard, a plaintiff must show a reascriably diligent effort was undertaken to complete service. See id. "Good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent service." effort at Bumpus v. N.Y City Tr. Auth., 66 A.D.3d 26, 32 (2d Dep't 2009). Good cause, however, may be "found to exist where the plaintiff's failure to timely serve process is a result of control." circumstances beyond the plaintiff's Id 18. Here, Plaintiff has certainly made a diligent effort to locate and timely serve NJ Paz pursuant to CPLR § 31 1. justice" 19. Furthermore, to apply for an extension under the broader "interest of standard, the court weighs a number of factors, including: (1) the presence or absence of reasonable diligence; (2) whether the statute of limitations on the claim has expired; (3) the meritorious nature of the Cause of Action; (4) the promptness of the request for more time; (5) and the prejudice to defendants. See Leader, supra, 97 N.Y.2d at 106. 459032.1 3 of 4 FILED: NEW YORK COUNTY CLERK 08/28/2018 03:55 PM INDEX NO. 652792/2017 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/28/2018 20. In the present matter, Plaintiff has attempted to personally serve NJ Paz at various addresses found online before the statute of limitations expires on September 11, 2018. However, through no fault of Plaintiff, NJ Paz consistently changes and/or moves its business address, making itextremely difficult for Plaintiff to serve NJ Paz. Plaintiff requires additional time to serve NJ Paz in order to retain a skip tracing service to locate NJ Paz's current business address. diligence" 21. While no single factor is determinative, if "reasonable is found, then a plaintiff satisfies both standards. Id. Most importantly, public policy favors resolution of cases on the merits, and Plaintiff's diligent efforts to effectuate service on NJ Paz warrant relief under CPLR § 306-b. 22. Based upon the foregoing, Plaintiff respectfully requests an extension of time to serve NJ Paz for 120 days from the date of the Court's Order. Dated: New York, New York August 28, 2018 Respectfully submitted, By: Itobert A. Stern, Esq. CLAUSEN MILLER P.C. 39th 28 Liberty Street, FlOOr New York, New York 10005 (212) 805-3900 459032.1 4 of 4