The following papers numbered 1-39 read on this motion by plaintiff for an order vacating the order of dismissal as to the defendant Sheila Peterson (“Peterson”), dated April 15, 2016; permitting service by publication and the filing of a supplemental summons, amended complaint and amended notice of pendency; to appoint a Guardian ad Litem for Sheila Peterson; amending the caption to reflect Residential Mortgage Loan Trust 2013-TT2, by U.S. Bank National Association, not in its individual capacity; but solely as Legal Title Trustee in place and stead of plaintiff; and the cross-motion by defendant Peterson for an order granting her the following relief: (1) dismissing plaintiff’s motion, dated November 12, 2018 in its entirety; (2) awarding defendant Peterson counsel fees in the sum of $10,000.00 for having to respond to plaintiff’s frivolous motion dated November 12, 2018 with leave to apply for further sums as may be warranted; and (3) imposing sanctions upon plaintiff and its attorney for their harassing and dilatory misconduct by filing the within motion.PAPERS NUMBEREDNotice of Motion-Affirmation-Exhibits 1-28Cross-Motion-Affirmation-Exhibits 29-36Memorandum of Law in Opposition to Cross-Motion 37-38Stipulation 39 Upon the foregoing papers, it is ordered that plaintiff’s motion and defendant Peterson’s cross-motion are determined as follows:This foreclose action on the defendant’s property, located at 107 29 118th Street, Richmond Hill, Queens (the “Premises”), was commenced on or about August 20, 2009. In a decision, dated December 14, 2015, Justice Diccia T. Pineda Kirwan directed that a Traverse Hearing be held on January 20, 2016. The Traverse Hearing was adjourned to March 30, 2016. After the Traverse Hearing, Justice Pineda Kirwan issued a decision on April 15, 2016. In that decision, Justice Pineda Kirwan determined that the plaintiff “fail[ed] to establish that this court has personal jurisdiction over Sheila Peterson”, and directed the Clerk of the Court to enter judgment dismissing the action as against defendant Sheila Peterson.Plaintiff now moves, amongst other things, for an order vacating the order of dismissal as to defendant Peterson, issued on April 15, 2016 and to permit service upon defendant Peterson by publication, or in the alternative, through her counsel of record. In a consent to change attorneys, plaintiff agreed to have Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (Incoming counsel) substitute as counsel for plaintiff in place and stead of McCabe, Weisberg & Conway, LLC (“outgoing counsel”). The consent to change counsel was executed by incoming counsel on September 26, 2018, outgoing counsel on November 17, 2018, and the plaintiff on October 29, 2018. Plaintiff claims that it was never served with notice of entry of the dismissal order, issued on April 15, 2016. Plaintiff claims that both good cause exists, and that in the interests of justice, it should be granted an extension of time to serve process upon defendant Peterson pursuant to CPLR 306-b. In his affidavit of due diligence, Samuel Berg, an employee of Serving for Lawyers (a process service company), stated that since the issuance of the dismissal order, it has been unable to serve defendant Peterson. Moreover, since the statute of limitations has expired, plaintiff assets that its claim will be extinguished if it is not granted an extension to serve.In opposition, defendant Peterson claims that the order issued on April 15, 2016, was timely served on May 10, 2016, with notice of entry upon plaintiff’s counsel, McCabe, Weisberg & Conway, P.C., and filed with the Clerk’s Office on May 16, 2016. Notwithstanding this, defendant Peterson argues that the expiration of the statute of limitations is not a basis for extending plaintiff’s time to serve. Defendant Peterson further argues that the plaintiff has not shown that good cause exists, or that in the interests of justice, plaintiff should be granted an extension of time to serve pursuant to CPLR 306-b. Moreover, defendant Peterson claims that granting plaintiff an extension to serve, particularly where this action was commenced over nine years ago, would be extremely prejudicial to her. Therefore, defendant Peterson argues that plaintiff’s request for an extension to serve pursuant to CPLR 306-b should be denied.CPLR 306-b requires that service of the summons and complaint “shall be made within one hundred twenty days after the commencement of the action,” and “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (CPLR 306-b; see PDK Labs, Inc. v. G.M.G. Trans W. Corp., 101 AD3d 970, 974 [2d Dept. 2012]; Burwell v. Yonkers Gen. Hosp., 6 AD3d 478, 480 [2d Dept. 2004]). “An extension of time for service is a matter within the court’s discretion” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 101 [2001]). Such a motion may be granted upon “good cause shown or in the interest of justice” (CPLR 306-b; see Leader v. Maroney, Ponzini & Spencer, supra at 104-105). “Good cause and interest of justice are two separate and independent statutory standards” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept. 2009]).Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Bumpus v. New York City Transit Authority, supra at 31 [2nd Dept 2009]). Good cause will not exist where a plaintiff fails to make any effort, or at least a reasonably diligent effort, at service (Id. at 32, citing Valentin v. Zaltsman, 39 AD3d 852 [2nd Dept 2007]). By contrast, good cause may be found to exist where the plaintiff’s failure to timely serve process is a result of circumstances beyond the plaintiff’s control (Id. at 32).The interest of justice standard does not require reasonably diligent efforts at service, but Courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (Id. at 32, citing Leader v. Maroney, Ponzini & Spencer, supra at 105). The interest of justice standard is broader than the good cause standard, as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant standard (Id.).Initially, the Court finds that the plaintiff’s claim that it was not served with the dismissal order, issued on April 15, 2016, is without merit. The order with notice of entry, demonstrating service on McCabe, Weisberg & Conway, P.C., plaintiff’s attorney at that time, was filed with the Queens County Clerk’s Office on May 10, 2016. Significantly, plaintiff failed to submit an affirmation from McCabe, Weisberg & Conway, P.C. (outgoing counsel) indicating that they were not served with the dismissal order. Notwithstanding this, the Court finds that the plaintiff has failed to show good cause exists to extend its time to serve. In the affidavit of due diligence, Mr. Berg failed to specify the date service was attempted on defendant Peterson at the Premises. The Court also finds that plaintiff failed to promptly seek an extension. This motion was filed on November 21, 2018, two and a half years after the dismissal order was issued. Plaintiff did not set forth a reason for said delay. The Court further finds that defendant Peterson has demonstrated that she will be prejudiced if plaintiff is granted an extension. Accordingly, the Court denies plaintiff’s motion in its entirety.In the cross-motion, defendant Peterson requests that she be awarded counsel fees in the sum of $10,000.00 for having to respond to plaintiff’s motion, and that the Court impose sanctions upon plaintiff and its attorney for their harassing and dilatory misconduct by filing the within motion. Defendant Peterson argues that the instant motion is meritless in both law and in fact, and that plaintiff filed the motion solely to harass the her. In opposition, plaintiff claims that the instant motion was appropriately filed in accordance with CPLR 306-b. Plaintiff further claims that defendant Peterson failed to submit admissible evidence, in the form of defendant’s affidavit, alleging that plaintiff or its attorneys engaged in conduct justifying sanctions.The Court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct” (22 NYCRR 130-1.1[a]). Conduct is frivolous under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][1], [2]; see Mascia v. Maresco, 39 AD3d 504, 505 [2d Dept. 2007], lv denied 9 NY3d 813 [2007]; Greene v. Doral Conference Ctr. Assoc., 18 AD3d 429, 431 [2d Dept. 2055]).Here, the Court finds that plaintiff’s claim that it was not served with notice of entry of the dismissal order, issued on April 16, 2015, is without merit. Defendant Peterson had filed the notice of entry with the Queens County Clerk’s Office on May 10, 2016, over two years before the instant motion was filed. As such, the Court finds that defendant Peterson established that plaintiff’s failure to review the County Clerk minutes prior to filing this motion was frivolous conduct within the meaning of 22 NYCRR 130-1.1(c) (Board of Mgrs. of Foundry at Wash. Park Condominium v. Foundry Dev. Co., Inc., 137 AD3d 1181, 1182 [2d Dept. 2016]). Accordingly, defendant Peterson’s cross-motion is granted to the extent that she is awarded $250.00 in attorney’s fees from plaintiff’s counsel, and it isORDERED, plaintiff’s counsel shall, without any charge to its client, pay defendant Peterson the sum of $250.00 to compensate her for the attorney’s fees incurred by her due to her attorney’s having to respond to the instant motion within 30 days after notice of entry of this decision.Dated: June 27, 2019
