DECISION/ORDER The plaintiff moves for an order pursuant to CPLR §3404, CPLR §3216 (b)(3) and 22 NYCRR §212.14 to restore this action to the calendar and for an order extending plaintiff’s time to serve the complaint, nunc pro tunc. This is an action for breach of contract which was commenced in 2013. In 2016 a default judgment was granted in favor of the plaintiff as against both defendants. An inquest was held in 2017 and the plaintiff was awarded damages in the sum of $120,000. Subsequently both defendants moved to vacate their defaults. In a decision and order dated December 1, 2020 Justice Franco granted defendant Muniz’s motion to vacate the default and directed the plaintiff to accept his answer as timely. With respect to defendant Torres, Justice Franco ordered a traverse which was held in May and July of 2021. After the hearing Judge Franco held that because the plaintiff was unable to produce the process server at traverse, service upon Torres was not properly made and vacated the default judgment against him. Implicit in this decision is a finding that the court never obtained jurisdiction over defendant Torres and the matter therefore dismissed as to him. The plaintiff now moves to restore the action to the calendar and upon restoration grant leave to extend the time to serve a complaint. In support of the motion counsel never addresses when the action was marked off the calendar. Rather, plaintiff’s counsel confusingly argues that since the action was dismissed on November 17, 2021 he has one year to move to restore the action to the trial calendar and therefore has additional time in which to serve defendant Torres. In reviewing the file, the Court discovered a decision from Judge Julia Rodriguez dated January 18, 2022 which denied motion sequence 004 as moot and states” case is marked disposed”. The plaintiff’s argument in support of his motion has absolutely no legal merit and is simply not supported by any relevant statute or case law. Counsel may be confusing the provisions of CPLR §205(a) which affords a six month grace period to commence an action that has previously been terminated. However, this relief is not available where the prior action has been dismissed due to lack of personal jurisdiction (Rinaldi v. Rochford 77 A.D.3d 720). More likely counsel is seeking relief under CPLR §306-b granting leave to serve the defendant after expiration of the 120 day period as provided in the statute. Plaintiff’s request to restore this action to the calendar pursuant to CPLR §3404 and CPLR §3216 are also misplaced. CPLR §3404 applies to cases which are pre note of issue (Galati v. C. Raimondo & Sons Construction Co. 35 A.D.3d 805). Although a note of issue was previously filed in this case it is no longer of any effect as it was served after the defendants defaulted and prior to the inquest. Since the judgment was vacated, the note of issue is no longer in effect and the matter effectively reverts back to pre note status. CPLR §3216 is a provision used by a defendant to an action to dismiss for failure of a party to prosecute a claim. It is not the basis for restoration of a case. The only conceivable ground for restoration here rests with 22 NYCRR §212.14 which permits restoration where a case has been stricken from the calendar. It seems that Judge Rodriguez in denying the plaintiff’s motion to compel the defendants compliance with an information subpoena, which was served after entry of the judgment awarded at inquest, mistakenly marked the case as disposed. It in fact has not been disposed. The court therefore will grant the motion to restore to the calendar. Since there has been no discovery in the case and issue has ben joined by defendant Muniz, the plaintiff should file for and request a preliminary conference. As to the balance of the plaintiff’s motion in which he seeks an order “pursuant to the rules and provisions of the CPLR for extending plaintiff’s time to serve the complaint, nunc pro tunc and compelling the defendant to accept such service”, the plaintiff cites no specific section of the CPLR to support this argument except for CPLR §2221. This provision is one for renewal and re-argument. However the plaintiff completely fails to address any issues that relate to re-argument or renewal of Justice Franco’s earlier order. The only other possible provision of the CPLR which would be applicable here is CPLR §306-b. Pursuant to CPLR §306-b a court may, in the exercise of discretion, grant a motion to extend the time within which to effectuate service for good cause shown or in the interests of justice (see Leader v. Maroney, Ponzini & Spenser 97 N.Y.2d 95). Good cause and interests of justice are two separate and independent statutory standards (Bumpus v. New York City Transit Authority 66 A.D.3d 26). To establish good cause a plaintiff must demonstrate reasonable diligence in attempting service (Id). If good cause is not established the court may consider the broader “interest of justice standard”. In considering the interest of justice standard the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including the expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of plaintiff’s request for the extension of time and prejudice to the defendant (Leader supra). Cases in the First Department hold that after an action has been dismissed a plaintiff is foreclosed from seeking an extension of time to effect service under CPLR §306-b (OneWest Bank FSB v. Barbosa 172 A.D.3d 484; Jiminez v. City of New York 13 A.D.3d 107; Sottile v. Islandia Home for Adults 278 A.D.2d 482). However in a recent decision issued by the Appellate Division Second Department, the court held that a trial court may entertain a motion to extend time for service that is made subsequent to the issuance of an order granting a motion to dismiss as long as no judgment dismissing the case has been entered (State of New York Mortgage Agency v. Braun 182 A.D.3d 63). The facts in that case are very similar to those here. In Braun, the plaintiff commenced an action to foreclose a residential mortgage. The defendant defaulted in the action and a judgment of foreclosure entered. One day before the scheduled foreclosure sale, the defendant moved to vacate the default alleging lack of personal jurisdiction. A traverse hearing was held and because the plaintiff was unable to present the testimony of the process server, who had passed away prior to the hearing, the motion was granted and the action was dismissed. Several months later the plaintiff moved for an order pursuant to CPLR §306-b to extend the time to serve the defendant. The motion was denied by the court. In reversing the lower court’s denial of the motion to extend the time to serve, the Appellate court found unpersuasive the defendant’s argument that the motion was properly denied because it was made in an action that was no longer pending. The Court held that because no judgment was ever entered dismissing the action, the action would still be deemed as pending (see, Cooke Garrett v. Hoque 109 A.D.3d 457). In addition the Court held that CPLR §306-b does not provide that a motion to extend the time to serve the complaint must be denied as untimely if it is made subsequent to the issuance of a motion to dismiss or that such motion be made in any particular time frame. This court notes that the First Department has not addressed the issue decided by the Second Department with respect to whether a motion seeking an extension after a case has been dismissed is timely made subsequent to the decision dismissing the complaint but prior to the entry of a judgment. The First Department has only held that a dismissal of an action precludes a plaintiff from seeking an extension under CPLR§ 306-b. The issue of whether an order dismissing a complaint terminates the plaintiff’s right to seek to extend time or whether the entry of the judgment is the triggering event has not been decided by the First Department. Thus this court can rely on the most recent decision issued by the Second Department in reaching its decision. Applying the above principals here the court declines to extend the plaintiff’s time to serve the complaint. Although extensions of time should be liberally granted on good cause shown or in the interests of justice, the plaintiff here failed to show that the action had merit or promptly or properly moved for an extension (Jiminez supra). In the first instance the court notes that the plaintiff’s attorney failed to move for relief under CPLR §306-b. The court in reviewing the motion and the applicable case law arrived at the conclusion that this was the relief that the plaintiff seeks. The papers submitted in support of this motion cite no applicable or relevant case law supporting his argument. Counsel submits no affidavit sworn to by the by the plaintiff, attesting to the merits of the claim. Instead, he submits an affidavit sworn in July 2020 which was submitted in connection with a motion to compel compliance with an information subpoena. It has little probative effect with respect to this application. Finally the plaintiff does not explain his delay in making this motion. A motion seeking time to extend service of the summons and complaint pursuant to CPLR §306(b) must be denied where the plaintiff has failed to adequately explain the extended delay in seeking the relief (see, Nationstar Mortgage LLC v. McCallum 191 A.D.3d 480; Wells Fargo Bank, N.A. v. Kaul 180 A.D.3d 956). Here, the plaintiff was put on a notice that service was purportedly improper in September of 2020, and was notified of the necessity of a traverse hearing in December of 2020. Judge Franco rendered his decision in October of 2021. The order was served with notice of entry on or about November 18, 2021. The instant motion was not made until February 15, 2022 nearly four months after the decision was issued. The plaintiff was on notice approximately eighteen months before he made the instant motion that service of process may have been improper. Plaintiff’s failure to timely move for an extension without any reasonable excuse or justification for the delay is fatal to his application. Accordingly the plaintiff’s motion is granted to the extent of restoring the action to the calendar as against defendant Muniz. It is denied in all other respects. This shall constitute the decision and order of the Court. Dated: April 25, 2022
