consider factors in New York

2015Turning to plaintiff’s request for an extension of time to serve, the discretionary interest of justice standard allows a court to consider such factors as the plaintiffs diligence in attempting service, the expiration of the statute of limitations, the meritorious nature of the claim, the length of the delay, diligence in seeking an extension of time and prejudice to the defendant (s ee Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Mead v Singleman, 24 AD3d 1142, 1144 [2005]; City of Albany v Wise, 298 AD2d 783, 784 [2002]).

2007While the interest of justice standard permits the trial court to consider factors in addition to an applicant’s diligence (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; de Vries v Metropolitan Tr.

2026That is, a motion to dismiss may be brought in lieu of an answer, following the answer, and may even be raised for the first time on appeal because it relates to the ability of this Court to consider the claim. ( Caci v State of New York , 107 AD3d 1121, 1122 [3d Dept 2013].) That is all to say that claimant's assertion that the State's motion to [*8]dismiss is premature is misplaced.

2026That is, a motion to dismiss may be brought in lieu of an answer, following the answer, and may even be raised for the first time on appeal because it relates to the ability of this Court to consider the claim. ( Caci v State of New York , 107 AD3d 1121, 1122 [3d Dept 2013].) That is all to say that claimant's assertion that the State's motion to [*8]dismiss is premature is misplaced.

2026Defendant's Motion to Dismiss Turning now to defendant's motion to dismiss, the governing standard under Court of Claims Act § 8-b is the same as any other claim before this court. ( Warney v State of New York , 16 NY3d 428, 435 [2011].) Accordingly, when reviewing a motion to dismiss pursuant to CPLR 3211 on the ground that the claim fails to state a cause of action, the pleading is to be afforded a liberal construction.

2026Defendant's Motion to Dismiss Turning now to defendant's motion to dismiss, the governing standard under Court of Claims Act § 8-b is the same as any other claim before this court. ( Warney v State of New York , 16 NY3d 428, 435 [2011].) Accordingly, when reviewing a motion to dismiss pursuant to CPLR 3211 on the ground that the claim fails to state a cause of action, the pleading is to be afforded a liberal construction.

2023Indeed, despite the compulsory language within CPLR § 902, requiring that the court consider the factors therein, most cases simply do not discuss them ( see generally Pludeman , 74 AD3d 420; Ackerman, 52 AD2d 179; Friar , 78 AD2d 83), some only discuss a few of those factors ( Tanzer v Turbodyne Corp. , 68 AD2d 614, 621 [1st Dept 1979] [Court held that because the action brought in New York involved Delware corporations governed by Delaware law, CPLR § 902(4) - "[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum" - militated against class

2023Indeed, despite the compulsory language within CPLR § 902, requiring that the court consider the factors therein, most cases simply do not discuss them ( see generally Pludeman , 74 AD3d 420 ; Ackerman, 52 AD2d 179 ; Friar , 78 AD2d 83 ), some only discuss a few of those factors ( Tanzer v Turbodyne Corp. , 68 AD2d 614, 621 [1st Dept 1979] [Court held that because the action brought in New York involved Delware corporations governed by Delaware law, CPLR § 902(4) - "[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum" - militated against cl

2023Indeed, despite the compulsory language within CPLR § 902, requiring that the court consider the factors therein, most cases simply do not discuss them ( see generally Pludeman , 74 AD3d 420; Ackerman, 52 AD2d 179; Friar , 78 AD2d 83), some only discuss a few of those factors ( Tanzer v Turbodyne Corp. , 68 AD2d 614, 621 [1st Dept 1979] [Court held that because the action brought in New York involved Delware corporations governed by Delaware law, CPLR § 902(4) - "[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum" - militated against class

2023Indeed, despite the compulsory language within CPLR § 902, requiring that the court consider the factors therein, most cases simply do not discuss them ( see generally Pludeman , 74 AD3d 420 ; Ackerman, 52 AD2d 179 ; Friar , 78 AD2d 83 ), some only discuss a few of those factors ( Tanzer v Turbodyne Corp. , 68 AD2d 614, 621 [1st Dept 1979] [Court held that because the action brought in New York involved Delware corporations governed by Delaware law, CPLR § 902(4) - "[t]he desirability or undesirability of concentrating the litigation of the claim in the particular forum" - militated against cl

2020Although the record does not reflect that the court considered each of the factors required by Domestic Relations Law § 76-f (2), we need not remit the matter because the record is sufficient to allow this Court to consider those factors ( see Matter of Luis [*2]F.F. v Jessica G. , 127 AD3d 496, 497 [1st Dept 2015]; Matter of Sutton v Sutton , 74 AD3d 1838, 1839 [4th Dept 2010]; cf. Matter of Beyer v Hofmann , 161 AD3d 1536 , 1537 [4th Dept 2018]), and we likewise conclude that, under the circumstances of this case, California is an appropriate forum and New York is an inconvenient forum.

2020Although the record does not reflect that the court considered each of the factors required by Domestic Relations Law § 76-f (2), we need not remit the matter because the record is sufficient to allow this Court to consider those factors ( see Matter of Luis [*2]F.F. v Jessica G. , 127 AD3d 496, 497 [1st Dept 2015]; Matter of Sutton v Sutton , 74 AD3d 1838, 1839 [4th Dept 2010]; cf. Matter of Beyer v Hofmann , 161 AD3d 1536 , 1537 [4th Dept 2018]), and we likewise conclude that, under the circumstances of this case, California is an appropriate forum and New York is an inconvenient forum.

2015Despite plaintiff’s clear lack of diligence here, we perceive no *756 abuse of discretion in Supreme Court’s conclusion that an extension of time for service was warranted based upon the demonstration of merit, the expiration of the statute of limitations and, given plaintiff’s communication and cooperation with defendant’s insurance carrier well prior to the commencement of the action, the lack of any prejudice to defendant (see Wishni v Taylor, 75 AD3d 747, 749 [2010]; Dujany v Gould, 63 AD3d 1496, 1498 [2009]; Mead v Singleman, 24 AD3d at 1144 ).

2015Despite plaintiff’s clear lack of diligence here, we perceive no *756 abuse of discretion in Supreme Court’s conclusion that an extension of time for service was warranted based upon the demonstration of merit, the expiration of the statute of limitations and, given plaintiff’s communication and cooperation with defendant’s insurance carrier well prior to the commencement of the action, the lack of any prejudice to defendant (see Wishni v Taylor, 75 AD3d 747, 749 [2010]; Dujany v Gould, 63 AD3d 1496, 1498 [2009]; Mead v Singleman, 24 AD3d at 1144 ).

2015Turning to plaintiff’s request for an extension of time to serve, the discretionary interest of justice standard allows a court to consider such factors as the plaintiffs diligence in attempting service, the expiration of the statute of limitations, the meritorious nature of the claim, the length of the delay, diligence in seeking an extension of time and prejudice to the defendant (s ee Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Mead v Singleman, 24 AD3d 1142, 1144 [2005]; City of Albany v Wise, 298 AD2d 783, 784 [2002]).

2015Despite plaintiff’s clear lack of diligence here, we perceive no *756 abuse of discretion in Supreme Court’s conclusion that an extension of time for service was warranted based upon the demonstration of merit, the expiration of the statute of limitations and, given plaintiff’s communication and cooperation with defendant’s insurance carrier well prior to the commencement of the action, the lack of any prejudice to defendant (see Wishni v Taylor, 75 AD3d 747, 749 [2010]; Dujany v Gould, 63 AD3d 1496, 1498 [2009]; Mead v Singleman, 24 AD3d at 1144 ).

2015Turning to plaintiff’s request for an extension of time to serve, the discretionary interest of justice standard allows a court to consider such factors as the plaintiffs diligence in attempting service, the expiration of the statute of limitations, the meritorious nature of the claim, the length of the delay, diligence in seeking an extension of time and prejudice to the defendant (s ee Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Mead v Singleman, 24 AD3d 1142, 1144 [2005]; City of Albany v Wise, 298 AD2d 783, 784 [2002]).

2012(People v McDonald, 296 AD2d 13, 20 [3d Dept 2002], affd 1 NY2d 109 [2003].) In addition, the thorough evaluation required by Picea requires the court to consider factors such as the contemporaneous presence of family members in the United States, contrasted with the extant family in defendant’s country of origin; defendant’s employment history in both countries; any steps defendant had taken prior to the guilty plea to remain legally in this country; defendant’s frequency of travel to his or her country of origin; any relevant statements by the defendant to the court, to the Department of Pro

2007Auth., 11 AD3d 312, 313 [2004]), we find that only one relevant factor—the expiration of the statute of limitations—weighs in petitioner’s favor. * Most significantly, we are not persuaded that his claims have merit.

2002Defendant did not ask the court to consider the defense of intoxication and therefore failed to preserve for our review his contention that proof of his intoxication should have negated the element of intent to commit the various crimes (see, CPL 470.05 [2]; see also, People v Williams, 277 AD2d 508, 510 ; People v Jones, 272 AD2d 930, 932 , lv denied 95 NY2d 891 ).