December 2, 2022 by Suzan Cherichetti Civil Procedure, New York 0 comments
Don’t Drag Your Feet And Assume That NY Courts Will Grant Extensions Of TimeWhen requesting an extension of time, clients and attorneys must be cautious in assuming that New York courts will unilaterally grant their requests simply because they think they deserve one. In LaSalle Bank, NA v. Ferrari, the plaintiff filed a mortgage foreclosure action against the defendant in August 2008. In late 2014, plaintiff moved for an order of reference and defendant cross moved to dismiss the complaint. Two years later, the Supreme Court held the motions in abeyance pending the outcome of a hearing to determine the validity of service of process on the defendant. On the date of the scheduled hearing, plaintiff informed the court that it needed an extension because their original process server had died, and plaintiff’s counsel was unable to discover additional information and that was admissible. The request was granted, and the hearing adjourned until the following month. After a series of administrative delays, the Supreme Court ultimately denied plaintiff’s motion for an extension of time to serve the defendant. The Second Department affirmed, recognizing that a court may extend the time for service “upon good cause” or “in the interest of justice.” The court found that plaintiff failed to establish good cause because even though the original process server had passed away, the plaintiff could have produced the server’s logbook or other similar evidence to rebut the defendant’s assertions that process was served on a different person with a similar name as the defendant. The Court also found that plaintiff failed to satisfy the “in the interest of justice” standard. To prevail on this standard, the plaintiff would not need to show reasonably diligent efforts in order to be granted the extension as long as the defendant would not be prejudiced. However, the Court found that plaintiff knew in late 2014 that service might be defective but waited until the hearing date in November 2016 to ask for an extension. The Ferrari decision serves as a reminder that extension requests should be made in a timely manner and that parties should not wait until the minute or risk losing their rights. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.