120 DAYS AFTER COMMENCEMENT

CPLR 306-b provides: "Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires.  If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

Nationstar Mtge., LLC v Wilson 2019 NY Slip Op 07595 Decided on October 23, 2019 Appellate Division, Second Department

"If service of the summons and complaint is not made upon a defendant within 120 days of commencement of the action, "the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (CPLR 306-b). " Good cause' and interest of justice' are two separate and independent statutory standards" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Bumpus v New York City Tr. Auth., 66 AD3d at 31; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106). The interest of justice standard is a broader standard "to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105 [internal quotation marks omitted]). "The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" (id.). "Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including 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 an extension of time, and prejudice to defendant'" (Wells Fargo Bank v Figueroa, 171 AD3d 987, 989, citing Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106).

Here, the plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effect proper service upon Carbone, and thus failed to show good cause (see Wells Fargo Bank, NA v Barrella, 166 AD3d 711, 714; Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787-788). The first attempted service upon Carbone was made on October 30, 2014, at the property which is the subject of this foreclosure action. Carbone's answer raised the affirmative defense of improper service, and in his affidavit submitted in support of his motion to dismiss filed on February 2, 2015, this argument was set out in detail, in that Carbone asserted that he did not reside at the property address. Yet, Nationstar waited until February 20, 2015, the day before the expiration of the 120-day service period, to make a second attempt to serve Carbone at his residence, and notably this service was not completed within the 120-day period. Moreover, in regard to the second attempt at service, which the Supreme Court totally discredited, it cannot be said that the plaintiff exercised reasonable diligence in attempting service.

Further, the plaintiff failed to establish entitlement to an extension of time for service in the interest of justice. Even though Nationstar was on notice in April 2015—when Carbone moved to dismiss for the second time based on improper service, relying on the surveillance video [*3]recording of the process server—that the February 2015 service was defective, and even though a copy of the video was sent to counsel for Nationstar on February 26, 2016, Nationstar still waited until April 2016 to move for an extension of time to serve Carbone. The plaintiff's motion therefore was not made until one year after Carbone moved to dismiss, and 16 months after the expiration of the 120-day service period (see Jung Hun Cho v Bovasso, 166 AD3d 868, 870; Hourie v North Shore-Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp., 150 AD3d 707, 709). The facts that the action was timely commenced, that Carbone had actual notice of the action within the 120-day service period, and that the statute of limitations had expired by the time the plaintiff moved to extend the time to serve, militate in favor of granting the plaintiff's motion to extend the time to serve. However, these factors are outweighed by the lack of diligence evidenced by the Supreme Court's finding that the process server never served Carbone, despite the process server's affidavit claiming he did serve Carbone."