Extension of Time to Make Re-Service on Defendant
In Murphy v. Hoppenstein, 279 A.D.2d 410, 720 N.Y.S.2d 62, (1st Dept. Jan. 25, 2001) a lower court order, entered September 22, 1999, in an action for medical malpractice, which granted plaintiff's motion pursuant to CPLR 306-b for an extension of time to make re-service on defendant, Altman, nunc pro tunc, as of the time such re-service was made was affirmed.
That court rejected defendant Altman's argument that an extension of the CPLR 306-b 120 day period to make service of the summons and complaint may be granted only if no service, as opposed to improper service, is made within the 120 day period.
Although the Appellate Division, in Murphy, supra, found that "plaintiff's efforts to serve defendant Altman were reasonably diligent.
The second action, which plaintiff commenced before the order of September 22, 1999, apparently re-instated his first action, was timely commenced within six (6) months after the first action was dismissed for what were characterized by the motion court as law office failings", said decision is silent as to what efforts were made by plaintiff.