The following papers read on this motion by defendant for an order, dismissing the complaint for lack of personal jurisdiction; and cross motion by plaintiff for an order, deeming timely the late service of process of the summons and complaint, nunc pro tunc. Papers Numbered Notice of Motion — Affirmation — Exhibits 1 Notice of Cross Motion — Affirmation — Exhibits 2 Affirmation in Opposition to Cross Motion 3 Affirmation in Opposition to Motion — Exhibits 4 Reply Affirmation 5 Upon the foregoing papers, it is ordered that the motion and cross motion are determined as follows: This is an action to recover for personal injuries allegedly sustained by plaintiff as the result of a motor vehicle accident on September 23, 2015, on the Grand Central Parkway and 82nd Street, County of Queens, City and State of New York. Defendant moves by pre-answer motion to dismiss the complaint for lack of personal jurisdiction due to the expiration of the statute of limitations. Plaintiff opposes and cross moves for an order pursuant to CPLR 306-b, 2004 and 2005, granting plaintiff leave to effect late service of process upon defendant nunc pro tunc based on good cause shown and/or in the interest of justice. The statute of limitations for personal injury actions involving motor vehicle accidents is three years. In the case at bar, contrary to plaintiff’s contention, plaintiff did not timely commence the action. Plaintiff filed the summons and complaint on September 24, 2018, one day after the three-year statute of limitations expired. (CPLR 214 [5]; Marino v. Proch, 258 AD2d 628 [2d Dept 1999]; Siegel, NY Prac §34 [6thed] [December 2020 update] [the event's anniversary date in the last year is the last day for the commencement of the action; for example, January 3, 2020 is the anniversary date of an accident date of January 3, 2017]). Therefore, this action is time-barred and must be dismissed (id.). Moreover, plaintiff’s cross motion for leave to effectuate late service of process of the summons and complaint, is denied. Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice (see Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). In accordance with CPLR 306-b, service of process was to be effected upon defendant within 120 days of filing which, in this instance, expired on January 21, 2019. Plaintiff did not serve defendant until May 8, 2019, with service completed by mailing on May 9, 2019. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see id. at 105). In the case at bar, plaintiff failed to demonstrate good cause for an extension of time, as he did not show that any effort was made to timely serve defendant during the 120-day period following the filing of the summons and complaint (Jung Hun Cho v. Bovasso, 166 AD3d 868 [2d Dept 2018]). Plaintiff’s proffered reason for serving the summons and complaint upon defendant almost five months late as “inadvertence” due to a “high volume of cases,” does not constitute “good cause.” If good cause for an extension is not established, courts must consider the interests of justice standard of CPLR 306-b. The interest of justice standard does not require reasonably diligent efforts at service. Under the interest of justice standard, “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 defendant” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105-06). In considering herein the above-mentioned factors, plaintiff failed to establish his entitlement to an extension of time for service of the summons and complaint in the interest of justice. Plaintiff did not exercise diligence in serving defendant by effectuating service almost five months after the expiration of the 120-day period (Hourie v. N. Shore-Long Island Jewish Health Sys., 150 AD3d 707 [2d Dept 2017]) or in moving for leave to extend the time to do so by cross-moving for such relief only after defendant first moved to dismiss the complaint (Jung Hun Cho v. Bovasso, 166 AD3d at 870). Accordingly, the motion is granted and plaintiff’s complaint is hereby dismissed. Dated: February 26, 2021
