At page 862 Defective service of process and statute of limitations issues9 citing casesStanley, 153 Misc 2d 954, 957 [1992]; DiGiuseppe v DiGiuseppe, 70 Misc 2d 188, 189 [1972]). Here, there was no showing that the appellant was physically…
- Chan v. Zoubarev, 2018 NY Slip Op 402 (N.Y. App. Div. 2d Dep't 2018).publishedMoreover, there was no prejudice to the defendant attributable to the delay in service ( see Singh v Trahan , 153 AD3d at 961 ; Selmani v City of New York , 100 AD3d at 862; Dhuler v ELRAC, Inc ., 118 AD3d at 939 ).
- Singh v. Trahan, 153 A.D.3d 961 (N.Y. App. Div. 2d Dep't 2017).publishedWhile the action was timely commenced, the statute of limitations had expired when the plaintiffs first moved for relief, the timely service of process was subsequently found to have been defective, and the defendants had actual notice of…
- Destiny Rivera v. Rodriguez, 142 A.D.3d 657 (N.Y. App. Div. 2d Dep't 2016).publishedWhile the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the plaintiffs re-served the defendant within a reasonable time after learning that the timely service of process was…
- Jhang v. Nassau Univ. Med. Ctr., 140 A.D.3d 1018 (N.Y. App. Div. 2d Dep't 2016).publishedHere, while the action was timely commenced, the statute of limitations had expired when the plaintiff moved for such relief, the timely service of process was subsequently found to have been defective, and the de *1020 fendant had actual…
- Kuwano v. Linares, 133 A.D.3d 573 (N.Y. App. Div. 2d Dep't 2015).publishedIn addition, the action was timely commenced and, although the statute of limitations had expired by the time that the plaintiff’s motion was decided, it had not yet expired when the plaintiff moved for relief (see Castillo v JFK Medport,…
- Castillo v. JFK Medport, Inc., 116 A.D.3d 899 (N.Y. App. Div. 2d Dep't 2014).published While the action was timely commenced, the statute of limitations had expired when the plaintiff cross-moved for relief, the timely service of process was subsequently found to have been defective, and the defendants had actual notice of t…
- Rudd v. City of New York, 115 A.D.3d 729 (N.Y. App. Div. 2d Dep't 2014).published Although this action was timely commenced, the statute of limitations had expired when the plaintiff sought to enlarge her time to serve copies of the summons and complaint upon the defendant New York City Housing Authority (hereinafter th…
At page 861 Defining actual place of business for service of process7 citing cases“a person's 'actual place of business' must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.”
- Ray v. Choueka, 683 F. Supp. 3d 427 (S.D.N.Y. 2023).published“physically present [there] with regularity, and that person must be shown to regularly transact business at that location”
- 1136 Realty, LLC v. 213 Union Street Realty Corp., 130 A.D.3d 590 (N.Y. App. Div. 2d Dep't 2015).publishedServs. of N.Y., P.C., 105 AD3d 831 , 833 [2013] [internal quotation marks omitted]; Selmani v City of New York, 100 AD3d 861, 861 [2012]).
- Rosario v. NES Med. Servs. of New York, P.C., 105 A.D.3d 831 (N.Y. App. Div. 2d Dep't 2013).published “A person’s ‘actual place of business’ must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location” {Selmani v City of New York, 100 AD3d 861, 861 [2012]; se…
- Ayyaz v. New York Police Dep't, No. 1:19-cv-01412 (S.D.N.Y. Mar. 31, 2021).
- Jiaxing Leadown Fashion Co. v. Lynn Brands LLC, No. 1:21-cv-00976 (S.D.N.Y. Nov. 8, 2021).
- Pate v. City of Rochester, 579 F. Supp. 3d 417 (W.D.N.Y. 2022).published
954 N.Y.S.2d at 581 A person’s ‘actual place of business’ must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.” (citation omitted)1 citing case
- Anderson v. City of New York, No. 1:19-cv-07113 (S.D.N.Y. June 30, 2020).(A person’s ‘actual place of business’ must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location.” (citation omitted))
Other citing cases
- Reyes Nepomuceno v. Columbia Deli & Grill Inc., No. 1:19-cv-03150-MKV-RWL (S.D.N.Y. Mar. 28, 2024).
v.
City of New York, and Michael Reilly
In an action to recover damages for personal injuries, etc., the defendant Michael Reilly, individually, appeals from so much of an order of the Supreme Court, Kings County (Ash, J.), dated November 30, 2011, as denied his motion pursuant to CFLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him, individually, for lack of personal jurisdiction and granted the plaintiffs’ cross motion pursuant to CFLR 306-b for leave to extend the time to serve him with copies of the summons and complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The appellant correctly contends that the plaintiffs failed to establish that he was served at his “actual place of business” pursuant to CFLR 308 (2). A person’s “actual place of business” must be where the person is physically present with regularity, and that person must be shown to regularly transact business at that location (see Katz v Emmett, 226 AD2d 588, 589 [1996]; Bridgehampton Natl. Bank v Watermill Hgts. Assoc., 157 Misc 2d 246, 250 [1993]; Anon Realty Assoc. v Simmons [*862] Stanley, 153 Misc 2d 954, 957 [1992]; DiGiuseppe v DiGiuseppe, 70 Misc 2d 188, 189 [1972]). Here, there was no showing that the appellant was physically present with regularity or regularly transacted business at the headquarters of the New York City Fire Department in Brooklyn where process was served (see Matter of Hennessey v DiCarlo, 21 AD3d 505, 506 [2005]; Jiminez v City of New York, 5 AD3d 182, 183 [2004]; Williams v City of New York, 2010 NY Slip Op 30022[U] [Sup Ct, NY County 2010]). Accordingly, the attempted service of the summons and complaint pursuant to CPLR 308 (2) was defective as a matter of law (see Munoz v Reyes, 40 AD3d 1059 [2007]; Rios v Zorrilla, 8 AD3d 463 [2004]).
The Supreme Court, however, providently exercised its discretion in granting the plaintiffs’ cross motion pursuant to CPLR 306-b for leave to extend the time to serve the appellant with copies of the summons and complaint in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]). Here, while the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the timely service of process was subsequently found to have been defective, and the appellant had actual notice of the action within 120 days of commencement of the action (see Rosenzweig v 600 N. St., LLC, 35 AD3d 705 [2006]; Chiaro v D’Angelo, 7 AD3d 746 [2004]; Beauge v New York City Tr. Auth., 282 AD2d 416 [2001]). Furthermore, the plaintiffs demonstrated a potentially meritorious cause of action, and there was no prejudice to the appellant attributable to the delay in service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106; Rosenzweig v 600 N. St., LLC, 35 AD3d at 706). Rivera, J.E, Florio, Dickerson, Leventhal and Lott, JJ., concur.