Busler v. Corbett

In Busler v. Corbett, 259 AD2d 13, 16 [4th Dept 1999], the Court granted plaintiff's application to extend the time for service under the interests of justice standard contained in CPLR 306-b where her attorney commenced the action six days before the expiration of the statute of limitations but failed to serve defendants until 28 days after the statutorily permissible time for service. In granting the application, the Court relied upon federal precedent favoring the granting of extensions where dismissal would bar the action on statute of limitations grounds. The Court also noted the policy preference expressed in the CPLR 306-b's legislative history for liberally granting extensions to serve process in the interest of justice "whenever plaintiffs have been reasonably diligent in attempting service" (Busler at 16 ). Reasoning that "diligent" yet unsuccessful efforts at service support the granting of extensions for service for "good cause," the Busler Court concluded that lesser diligence (i.e., "reasonable diligence") should be evaluated under the interest of justice standard. In that case, the Court found that plaintiff had not articulated good cause; however, it granted the extension because plaintiff commenced her action timely, her claim would be extinguished under the applicable statute of limitations if the extension were denied, she served defendants only 28 days after expiration of the statutory period for service of process, plaintiff promptly moved for an extension of the time to serve nunc pro tunc, and defendants did not demonstrate that the extension would cause them prejudice. In this regard, defendants had argued that granting the extension would deprive them of their otherwise viable statute of limitations defense, and that this was prejudice. The Court ruled, however, that "prejudice" for CPLR 306-b purposes requires a showing that the extension would impair "defendant's ability to defend on the merits, rather than [merely cause the loss of] such a procedural or technical advantage." (Id. at 16.)