To be held valid, service of the summons and complaint must be made within 120 days of commencement of the action.[1] If service is not made within that time the court may entertain two options: 1) Dismiss the action without prejudice (plaintiff can possibly re-sue) upon request; or 2) Extend the plaintiff's time to serve upon its showing of good cause or in the interest of justice.
What represents "good cause" or "the interest of justice" is generally governed by the below two standards.[2]
- Good Cause: A plaintiff must demonstrate reasonable diligence in attempting service.[3] If the failure to timely serve is beyond the plaintiff's control, that may also constitute good cause. [4] Good cause will not exist where a plaintiff fails to make any effort at service.[5]
- In the Interest of Justice: This standard is broader and permits a court to consider many factors, including merit of the action, the expiration of the statute of limitations, the length of delay in service, plaintiff's diligence, prejudice to the defendant, and the promptness of plaintiff's request for an extension of time and.[6]
If you are being sued over a debt and you were not properly served with a summon and complaint, contact us for a free consultation.
[1] CPLR§ 306-b
[2] Mead v. Singleman, 24 AD3d 1142, 1143 [2005]; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 [2001].
[3] Id.
[4] see U.S. 1 Brookville Real Estate Corp. v. Spallone, 13 Misc.3d 1236(A), 2006 WL 3302836, quoting Eastern Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187 F.R.D. 503, 505; see also Greco v. Renegades, Inc., 307 A.D.2d 711, 712, 761 N.Y.S.2d 426 [difficulties of service associated with locating defendant enlisted in military]; Kulpa v. Jackson, 235, 773 N.Y.S.2d 235 [difficulties associated with service abroad through the Hague Convention].
[5] see Valentin v. Zaltsman, 835 N.Y.S.2d 298; Lipschitz v. McCann, 786 N.Y.S.2d 567
[6] Mead v. Singleman, 24 AD3d at 1144; see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 105–106.