The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 32, 33, 34 were read on this motion to EXTEND — TIME. In motion sequence 002, plaintiff seeks an extension of time to serve defendant Atlantic Specialty Insurance Company with the Summons and Complaint, pursuant to CPLR §306-b, §2004, §3012(d), and/or §2005. For the following reasons, this motion is denied. BACKGROUND This is a breach of contract action based on a 2018 agreement between plaintiff Ardel Construction & Design Group, Corp. (“Ardel”) and defendant VBG 990 AOA LLC (“VBG”) for the redevelopment and renovation of a building situated on property owned by VBG located at 990 Avenue of the Americas, New York (NYSCEF doc. no. 14 [First Amended Verified Complaint] at 6). Plaintiff alleges that defendant VBG breached its contractual obligations from the inception of the project and has repeatedly notified VBG of such breaches and delays (id. at 12, 14). Ardel further alleges that VBG failed to address or cure the delays and breaches, and such has prevented Ardel from performing its end of the Contract (id.). Ultimately, on July 30, 2020, VBG issued a Notice of Termination for Convenience to Ardel, terminating the contract effective August 4, 2020 (id. at 16). Plaintiff commenced this action by Summons and Complaint (“Original Complaint”) on July 29, 2021, asserting the following claims against VBG: breach of contract; breach of covenant of good faith and fair dealing; unjust enrichment; promissory estoppel (NYSCEF Doc. No. 1 [Verified Complaint]). Plaintiff also seeks to foreclose on the lien against both defendants VBG and Atlantic Specialty Insurance Company (“Atlantic”) (id.). Defendant VBG moved to dismiss the Original Complaint in its entirety on September 15, 2021 (Motion Seq. 001) (NYSCEF doc. no. 3). Plaintiff filed a First Amended Verified Complaint (“Amended Complaint”) on September 23, 2021 to include an additional cause of action for breach of contract against VBG (NYSCEF doc. no. 14). VBG renewed its motion to dismiss the Amended Complaint and sought to dismiss all causes of action except for the new cause of action of breach of contract against VBG (NYSCEF Doc. No. 29 at 8; NYSCEF doc. no. 31 at 7). During oral arguments, VBG advised the Court that it was withdrawing its motion to dismiss with respect to the cause of action to foreclose the lien (NYSCEF doc. no. 25 [tr. at 4, lines 17-20]). On July 21, 2022, the Court dismissed counts one, two, five, and six of the Original Complaint, with two causes of action remaining — foreclosure on the lien against VBG and Atlantic; and breach of contract against VBG (NYSCEF doc. no. 26). Plaintiff served VBG with the Original Complaint on August 6, 2021 and attempted to serve Atlantic with the same on August 9, 2021, but service was not effectuated. Plaintiff proffers a document from Guaranteed Subpoena Service, which seems to have made a single unsuccessful attempt to serve Atlantic but was unable to do so because the business was “closed since COVID has not opened” (NYSCEF doc. no. 29 [Ex. B]). The document further stated that it did not constitute an Affidavit of Due Diligence but offered to provide one for $40 (id.). Plaintiff has not supplied such an affidavit in its moving papers. Plaintiff served VBG with the Amended Complaint on October 7, 2021,1 and again attempted to serve Atlantic through the same process server on October 6, 2021, but service was not effectuated (NYSCEF doc. no. 29, Ex. D). Plaintiff proffers another document from Guaranteed Subpoena Service, who once again appears to have made a single unsuccessful attempt to serve Atlantic (id.). The document recommends an additional search and for the company to prepare an Affidavit of Due Diligence, which was again not included in plaintiff’s moving papers (id.). Plaintiff filed this instant motion, seeking an extension of time to serve defendant Atlantic with the summons and complaint. It does not appear that Atlantic has been served (or that plaintiff has attempted to serve Atlantic) with the instant motion.2 Plaintiff does not specify the additional number of days it would need to serve Atlantic, but the proposed order plaintiff provided in its moving papers grants an extension of 60 days from the date of the Order (NYSCEF doc. no. 30). Plaintiff argues that its application should be granted in the interest of justice because (1) the statute of limitations for plaintiff’s cause of action to foreclose on the mechanic’s lien against Atlantic has expired; (2) the cause of action has merit, as confirmed by VBG because VBG withdrew its motion to dismiss on the lien foreclosure cause of action; (3) service was only delayed for a few months and plaintiff moved for an extension of time in less than one month after it learned that VBG was no longer moving to dismiss the lien foreclosure cause of action; [*3](4) plaintiff promptly moved for an extension after learning that Atlantic had not been served and VBG was no longer moving to dismiss the lien foreclosure cause of action; and (5) there is no prejudice to Atlantic because it was aware of the mechanic’s lien as it posted a bond for the lien (NYSCEF doc. no. 29 at 17). Plaintiff contends that it timely filed and served the summons and complaint on VBG and discovery had just commenced shortly after the prior motion was decided, so there would not be prejudice against Atlantic (id. at 20). In opposition, defendant VBG argues that the application should be denied because plaintiff has failed to satisfy either standard in CPLR §306-b (NYSCEF Doc. No. 34). VBG contends that plaintiff conceded that it has not shown good cause for an extension pursuant to CPLR §306-b because it is seeking an extension of time solely in the interest of justice (id.). Furthermore, plaintiff Ardel did not make a reasonable diligent effort to serve Atlantic since it ignored the process server’s recommendation to conduct an additional search and have the process server submit an Affidavit of Due Diligence, and Ardel failed to explain its reasons for not doing so (id.). VBG also argues that case law clearly shows that law office failure is not “good cause” for an extension as a matter of law (id.). VBG asserts that plaintiff’s last attempt to serve Atlantic was in October 2021, and the instant motion was not commenced until July 2022, yet does not proffer an excuse for this nearly one-year delay (id.). VBG also argues that plaintiff’s application should be denied because plaintiff failed to show due diligence in effectuating service by only making one attempt and has failed to explain the nearly one-year delay between the commencement of the action and the request for an extension of time to serve Atlantic. VBG also argues that plaintiff did not adequately explain the eight month delay after the 120-day deadline to serve Atlantic pursuant to CPLR §306-b and the approximately four month delay in seeking an extension after the expiration of the statute of limitations (id.). DISCUSSION Plaintiff moves pursuant to CPLR §306-b, §2004, §3012(d), and/or §2005. CPLR §306-b provides that service of the summons and complaint on a defendant shall be made within 120 days of the filing of the summons and complaint. If service is not made within such time period, the court, within its discretion, may extend plaintiff’s time to serve the summons and complaint “upon good cause shown or in the interest of justice” (CPLR §306-b). Pursuant to CPLR §2004, the court may extend the time fixed by any statute upon a showing of good cause and upon such terms as may be just, whether the application for an extension is made before or after the expiration of the time fixed. In addition, CPLR §3012 (d) provides that “upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” CPLR §2005 further provides that when the requirements of CPLR §3012 (d) are satisfied, “the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure.” To demonstrate good cause, a plaintiff must show that reasonable diligence was exercised in attempting to timely serve a defendant (Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105 [2001]). An extension of time request sought in the interest of justice does not require diligent attempts at service as a threshold matter (id.; Matter of Jordan v. City of New York, 38 AD3d 336, 339 [1st Dept 2007]). “However, 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 a plaintiff’s request for the extension of time, and prejudice to defendant (Leader, 97 NY2d at 105-106). Law office failure is an insufficient excuse for not timely serving defendant (Zegelstein v. Faust, 179 AD3d 541, 542 [1st Dept 2020]). In the court’s discretion, based on the facts and circumstances of this case, plaintiff’s motion for an extension of time to serve is denied. Although plaintiff served its pleadings on VBG and attempted to serve Atlantic within the 120-day service period pursuant to CPLR §306-b, plaintiff nonetheless failed to show diligence in its efforts to effectuate service on Atlantic, especially because plaintiff failed to follow-up with the process server regarding service of the original and amended complaints within the 120-day service period. There is also no indication that plaintiff inquired about service with the process server even after the 120-day service period expired. Furthermore, there was no evidence that indicated that Atlantic could not be located, or that they could not be readily served through the Secretary of State (Johnson v. Concourse Vil., Inc., 69 AD3d 410, 410 (1st Dept 2010]). The last unsuccessful service attempt on Atlantic was in October 2021, the CPLR §306-b 120-day service period expired in November 2021, and the statute of limitations for the lien foreclosure cause of action expired in April 2022. The instant motion was not commenced until July 2022 and yet plaintiff does not proffer an excuse for this delay. Plaintiff attempts to argue that it was under the belief that VBG’s motion to dismiss sought to dismiss all claims, including the only cause of action against Atlantic, but this does not excuse plaintiff’s failure to serve Atlantic with the pleadings. Furthermore, it does not appear that plaintiff even attempted to serve Atlantic with the instant motion. It does not appear that Atlantic has yet received any notice of this action. There is merit to the cause of action, as VBG withdrew its motion to dismiss against the lien foreclosure cause of action because there is a question of fact as to whether it was timely filed (NYSCEF Doc. No. 25 [tr. at 4, lines 17-20]). However, in view of such lack of diligence, the long delay in notifying Atlantic of this action, and prejudice to defendant, an extension of time to serve is unwarranted in the interest of justice (Estate of Jervis v. Teachers Ins. & Annuity Assn.,279 AD2d 367 [1st Dept 2001][motion to extend denied where statute of limitations had expired, delay in service was lengthy and no showing of a meritorious cause of action]). Accordingly, it is ORDERED that the motion by plaintiff Ardel Construction & Design Group, Corp. to extend the time to serve defendant Atlantic Specialty Insurance Company is denied; and it is further ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all defendants, with notice of entry. Dated: January 3, 2023
