DECISION AND ORDER Plaintiff sues defendant to recover on two promissory notes and moves to extend its time to serve the summons and complaint on him. C.P.L.R. §306-b. Since plaintiff commenced its action by filing a summons and complaint December 21, 2011, its deadline for serving them on defendant was April 20, 2012. For plaintiff to extend its time to serve defendant beyond that deadline, plaintiff must show that good cause or the interests of justice dictate the extension. C.P.L.R. §306-b; Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001); Nunez-Ariza v. Nell, 161 A.D.3d 614, 614 (1st Dep’t 2018); HSBC Bank USA v. Carvalho, 128 A.D.3d 471, 472 (1st Dep’t 2015); Cassini v. Advance Publs., Inc., 125 A.D.3d 467, 468 (1st Dep’t 2015). Good cause focusses on plaintiff’s diligence in attempting to serve defendant and its reasons for not effecting service despite that diligence. Timely but defective service, for example, demonstrates reasonable diligence in attempting service. Pennington v. Da Nico Rest., 123 A.D.3d 627, 627 (1st Dep’t 2014); Henneberry v. Borstein, 91 A.D.3d 493, 496 (1st Dep’t 2012); Spath v. Zack, 36 A.D.3d 410, 413 (1st Dep’t 2007).Plaintiff indicates only that its process server could not locate the affidavit of service in December 2017, when plaintiff prepared to file a motion for a default judgment, but presents no evidence demonstrating any attempt to serve defendant within the 120 day period, and therefore fails to establish diligence. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 107; Khedouri v. Equinox, 73 A.D.3d 532, 532 (1st Dep’t 2010); Esposito v. Isaac, 68 A.D.3d 483, 483 (1st Dep’t 2009); Sutter v. Reyes, 60 A.D.3d 448, 449 (1st Dep’t 2009). If the affidavit of service was lost as plaintiff claims, the process server could have prepared a new affidavit of service from any record of service. Plaintiff offers no explanation for failing until December 2017 to realize that plaintiff lacked any record of service. If plaintiff believed it had served the summons and complaint on defendant in December 2011, his answer would have been due 30 days after service was complete, C.P.L.R. §§308(2), 3012(b), which would have set the deadline for a motion for a default judgment in mid-2013. C.P.L.R. §3215(c). Thus plaintiff’s claimed discovery in December 2017 of the absence of any record indicating service when plaintiff prepared its motion for a default judgment shows a further lack of diligence.Extending time for service in the interests of justice requires an evaluation of other factors as well as diligence, including the expiration of the applicable statute of limitations, the merit to the action, the length of the delay and promptness of the request to extend time, and prejudice to defendant from the delay. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105-106; Nunez-Ariza v. Nell, 161 A.D.3d at 614; Nicodene v. Byblos Rest., Inc., 98 A.D.3d 445, 446 (1st Dep’t 2012); Henneberry v. Borstein, 91 A.D.3d at 496. Plaintiff presents no evidence that the nonparty entity from which defendant received the loans assigned the promissory notes to plaintiff, nor authenticates them, and therefore fails to demonstrate its action’s merit. Schwartz v. Chan, 162 A.D.3d 408, 409 (1st Dep’t 2018); Cruz-Guzman v. 2380-2386 Grand Ave, LLC, 137 A.D.3d 639, 640 (1st Dep’t 2016); Cassini v. Advance Publs., Inc., 125 A.D.3d at 468; Khedouri v. Equinox, 73 A.D.3d at 532-33. Plaintiff further failed to request the extension promptly, having not filed the motion to extend the time to serve the summons and complaint until June 21, 2018, almost seven years after commencing the action, Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 93 A.D.3d 561, 562 (1st Dep’t 2012); Johnson v. Concourse Village, Inc., 69 A.D.3d 410, 411 (1st Dep’t 2010), and more than nine years after the claim accrued. HSBC Bank USA v. Carvalho, 128 A.D.3d at 471; New York State Div. of Human Rights v. Giffuni, 40 A.D.3d 361, 362 (1st Dep’t 2007); Posada v. Pelaez, 37 A.D.3d 168, 168 (1st Dep’t 2007). Plaintiff thus filed its motion more than three years after the expiration of the applicable statute of limitations June 7, 2015. C.P.L.R. §213(2). E.g., Chiu v. 1-9 Bond St. Realty, Inc., 79 A.D.3d 416, 416 (1st Dep’t 2010).Due to this extraordinary delay, defendant claims prejudice from the unavailability of witnesses and documents over the years since his transactions with the original holder of the promissory notes. This unavailability of evidence impairs his rights to confront the evidence against him and to present his own evidence, changes his position to his detriment, and may cause him significant expense. Sutter v. Reyes, 60 A.D.3d at 449. Relying on defendant’s opposing affidavit dated August 21, 2018, showing his address, which matches the address where plaintiff mailed notice of a status conference in 2017, plaintiff claims defendant was aware of this action. Defendant attests only that he resided at that address as of the date of his affidavit, however, without indicating that he resided there as of the date of the notice. Therefore plaintiff’s claim of notice lacks support in the record. See Schwartz v. Chan, 162 A.D.3d at 409. Even if defendant received notice of the 2017 conference, that notice did not eliminate the prejudice from the already extraordinary delay beyond the 120 day period for service and beyond the statute of limitations. Leader v. Maroney, Ponzini & Spencer, 97 A.D.3d at 107; Esposito v. Isaac, 68 A.D.3d at 484; Posada v. Pelaez, 37 A.D.3d at 168; Yardeni v. Manhattan Eye, Ear & Throat Hosp., 9 A.D.3d 296, 297 (1st Dep’t 2004). See Solano v. Mendez, 114 A.D.3d 614, 614 (1st Dep’t 2014).Finally, plaintiff voluntarily discontinued this action by serving and filing a notice of discontinuance January 19, 2012. C.P.L.R. §3217(a)(1); BDO USA, LLP v. Phoenix Four, Inc., 113 A.D.3d 507, 511 (1st Dep’t 2014); Giambrone v. Giambrone, 140 A.D.2d 206, 206-207 (1st Dep’t 1988). Plaintiff suggests that the notice was ineffective and that the court therefore must disregard the discontinuance. First, plaintiff contends that the notice of discontinuance was never served on defendant, because he attests that he did not receive it, and it was served at an address different from the one he acknowledged in his opposing affidavit. Yet plaintiff points to no error in the address where plaintiff served the notice over six years earlier, defendant never attests that he did not reside there then, and between 2012 and 2017 plaintiff proceeded as if the notice was served. Second, plaintiff contends that the notice was untimely, but, since plaintiff served the notice before defendant answered or moved to dismiss the complaint, the notice was timely. C.P.L.R. §3217(a)(1). See Jericho Group, Ltd. v. Mid-Town Dev. L.P., 129 A.D.3d 561, 561 (1st Dep’t 2015); BDO USA, LLP v. Phoenix Four, Inc., 113 A.D.3d at 511; Citidress II Corp. v. Hinshaw Culbertson LLP, 59 A.D.3d 210, 211 (1st Dep’t 2009).This prior discontinuance is reason alone to deny any request to proceed further in this action. Even if the court considers plaintiff’s motion as a request to vacate the discontinuance, however, such a request is also unreasonably late, and the action in any event must be dismissed for the reasons explained above. C.P.L.R. §§306-b, 3211(a)(8).For those reasons, the court denies plaintiff’s motion to extend its time to serve defendant with the summons and complaint and dismisses this action with prejudice. C.P.L.R. §306-b. Plaintiff fails to demonstrate entitlement to an extension of time to serve based on good cause, Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 93 A.D.3d at 562; Khedouri v. Equinox, 73 A.D.3d 532; Esposito v. Isaac, 68 A.D.3d at 483; Johnson v. Concourse Vil., Inc., 69 A.D.3d at 410-411, or in the interests of justice. Johnson v. Concourse Vil., Inc., 69 A.D.3d at 411; Okoh v. Bunis, 48 A.D.3d 357, 357 (1st Dep’t 2008); Posada v. Pelaez, 37 A.D.3d at 168; Yardeni v. Manhattan Eye, Ear & Throat Hosp., 9 A.D.3d at 297-98. This decision constitutes the court’s order and judgment of dismissal.DATED: January 23, 2019
