Preview
INDEX NO. EF000778-2023
FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023
SUPREME COURT-STATE OF NEW YORK
IAS PART-ORANGE COUNTY
Present: HON. DAVID J. SQUIRRELL, J.8.C.
SUPREME COURT: ORANGE COUNTY
wane X To commence the statutory time
period for appeals as of right
GWENDOLYN GRIFFIN, (CPLR 5513[a]), you are advised
Plaintiff, to serve a copy of this order, with
notice of entry, upon all parties.
-against-
Index No.: EF000778-2023
IVONNE ALICIA VENTURA RAMIS and DECISION and ORDER
PV HOLDING CORP.,
Defendants. Motions Date: August 16, 2023
aan xX Motion ## 1 & 2
The following papers numbered 1 to 7 were read and considered on (1) a motion by the
Defendant Ivonne Alicia Ventura Ramis, pursuant to CPLR § 306-b, to dismiss the action insofar
as asserted against her for lack of jurisdiction; and (2) a cross motion by the Plaintiff, pursuant to
CPLR § 3012, for an extension of time within which to serve Ivonne Alicia Ventura Ramis.
Notice of Motion- Clinton Affirmations 1-2
Notice of Cross Motion- Rupp Affirmation- Exhibits 1-3 .. 3-5
Reply- Clinton Affirmation
Opposition- Clinton Affirmation
Upon the foregoing papers, it is hereby,
ORDERED, that the motion is denied and the cross motion is granted.
Factual/Procedural Background
On February 2, 2023, the Plaintiff commenced the action at bar to recover damages
allegedly arising from a three-vehicle accident involving a vehicle owned by the Defendant PV
Holding Company and being driven by the Defendant Ivonne Alicia Ventura Ramis.
Ramis moves to dismiss the action insofar as asserted against her on the grounds that she
1
Filed in Orange County 10/25/2023 02:02:02 PM $0.00 Bk: 5191f 4 Pg: 1569 Index: # EF000778-2023 Clerk: SW
INDEX NO. EF000778-2023
FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023
was not served within 120 days of filing, as required by CPLR § 306-b.
The Plaintiff cross moves for an extension of time within which to serve Ramis.
In support of the cross-motion, the Plaintiff submits an affirmation from counsel, Dylan
Rupp.
Rupp asserts that the address on the police report for Ramis is in the country of Uruguay.
Thus, diligent efforts were made to serve Ramis by letters rogatory. However, the
efforts had been unsuccessful, as the address listed on the police report is now vacant.
Rupp notes that Uruguay is not a signatory to the Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters, colloquially known as the
Hague Service Convention.
Thus, he argues, the Plaintiff has made diligent attempts to serve Ramis, but requires
additional time to complete service.
In the alternative, he asserts, the Court should allow Ramis to be served by service upon
the insurance carrier for PV Holding Corp. pursuant to CPLR § 308(5).
As to the merits, he notes, Ramis was in a vehicle that rear-ended a vehicle being driven
by the Plaintiff.
In reply, and in opposition to the cross motion, Ramis submits affirmations from counsel,
Kevin Clinton.
Clinton argues that the Plaintiff failed to demonstrate diligent efforts to serve Ramis.
Rather, he notes, although the Plaintiff claims to have made diligent efforts to serve
Ramis by letters Togaiory, counsel had not appended the purported letters rogatory as an exhibit.
Further, counsel had not proffered an affidavit from a process server or provided any
20f 4
INDEX NO. EF000778-2023
FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023
details as to the alleged diligent effort made.
In addition, he argues, while the Plaintiff is correct that Uruguay is a not a signatory to
the Hague Convention, this does not foreclose all options for service of process.
Rather, the United States of America and Uruguay are signatory countries to the inter-
American Convention on Letters Rogatory and Additional Protocol (“IACAP”), which provides
for the issuance of letters rogatory.
In sum, he asserts, Ramis’s motion should be granted and the Plaintiff's cross motion
denied.
Discussion/Legal Analysis
In relevant part, CPLR 306-b provides that service of a summons with notice shall be
made within 120 twenty days after filing. Ifnot, the matter is subject to dismissal. However,
the Court may extend the time for service, “upon good cause shown or in the interest of justice.”
CER 306-b. The Court of Appeals has made clear that these are two distinct standards. An
extension for “good cause shown” requires a showing of reasonably diligent efforts at service.as
athreshold matter. Leader y. Maroney, Ponzini & Spencer, 97 N.Y .2d 95 (2001); Baumann &
Sons Buses, Inc. v. Ossining Union Free School Dist., 121 A.D.3d 1110 [2™ Dept. 2014]. By
contrast,
“[t]he 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. Unlike an
extension request premised on good cause, a plaintiff need not establish reasonably
diligent efforts at service as a threshold matter. However, 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 the extension of time, and prejudice to defendant.”
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INDEX NO. EF000778-2023
FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023
Leader v. Maroney, Ponzini & Spencer, 97 N.Y .2d 95 (2001); see also, Baumann & Sons Buses,
Ine. v. Ossining Union Free School Dist., 121 A.D.3d 1110 [2"4 Dept. 2014].
Here, applying this standard, Ramis’ motion is denied and the Plaintiffs cross motion is
granted for both good cause shown and in the interest of justice.
Accordingly, and for the reasons cited herein, it is hereby,
ORDERED, that the motion is denied and the cross motion is granted, and the Plaintiff is
granted an additional 120 days within which to serve the Defendant Ivonne Alicia Ventura
Ramis; and it is further,
ORDERED, that the parties, by counsel, if retained, are to appear for a conference on
Wednesday, March 13, 2024, at 9:30 a.m., at the Orange County Court House, Court room #3,
285 Main Street, Goshen, New York, unless a motion to renew is filed prior to that time.
The foregoing constitutes the decision and order of the court.
Dated: October 25, 2023 ENTER,
Goshen, N.Y.
TO SOBO & SOBO, LLP
Attomeys for Plaintiff
Office & P.O. Box
One Dolson Avenue
Middletown, New York 10940
PILLINGER MILLER TARALLO, LLP
Attomeys for Defendants
555 Taxter Road, 5" Floor
Elmsford, New York 1052
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Preview
INDEX NO. EF000778-2023 FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. DAVID J. SQUIRRELL, J.8.C. SUPREME COURT: ORANGE COUNTY wane X To commence the statutory time period for appeals as of right GWENDOLYN GRIFFIN, (CPLR 5513[a]), you are advised Plaintiff, to serve a copy of this order, with notice of entry, upon all parties. -against- Index No.: EF000778-2023 IVONNE ALICIA VENTURA RAMIS and DECISION and ORDER PV HOLDING CORP., Defendants. Motions Date: August 16, 2023 aan xX Motion ## 1 & 2 The following papers numbered 1 to 7 were read and considered on (1) a motion by the Defendant Ivonne Alicia Ventura Ramis, pursuant to CPLR § 306-b, to dismiss the action insofar as asserted against her for lack of jurisdiction; and (2) a cross motion by the Plaintiff, pursuant to CPLR § 3012, for an extension of time within which to serve Ivonne Alicia Ventura Ramis. Notice of Motion- Clinton Affirmations 1-2 Notice of Cross Motion- Rupp Affirmation- Exhibits 1-3 .. 3-5 Reply- Clinton Affirmation Opposition- Clinton Affirmation Upon the foregoing papers, it is hereby, ORDERED, that the motion is denied and the cross motion is granted. Factual/Procedural Background On February 2, 2023, the Plaintiff commenced the action at bar to recover damages allegedly arising from a three-vehicle accident involving a vehicle owned by the Defendant PV Holding Company and being driven by the Defendant Ivonne Alicia Ventura Ramis. Ramis moves to dismiss the action insofar as asserted against her on the grounds that she 1 Filed in Orange County 10/25/2023 02:02:02 PM $0.00 Bk: 5191f 4 Pg: 1569 Index: # EF000778-2023 Clerk: SW INDEX NO. EF000778-2023 FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023 was not served within 120 days of filing, as required by CPLR § 306-b. The Plaintiff cross moves for an extension of time within which to serve Ramis. In support of the cross-motion, the Plaintiff submits an affirmation from counsel, Dylan Rupp. Rupp asserts that the address on the police report for Ramis is in the country of Uruguay. Thus, diligent efforts were made to serve Ramis by letters rogatory. However, the efforts had been unsuccessful, as the address listed on the police report is now vacant. Rupp notes that Uruguay is not a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, colloquially known as the Hague Service Convention. Thus, he argues, the Plaintiff has made diligent attempts to serve Ramis, but requires additional time to complete service. In the alternative, he asserts, the Court should allow Ramis to be served by service upon the insurance carrier for PV Holding Corp. pursuant to CPLR § 308(5). As to the merits, he notes, Ramis was in a vehicle that rear-ended a vehicle being driven by the Plaintiff. In reply, and in opposition to the cross motion, Ramis submits affirmations from counsel, Kevin Clinton. Clinton argues that the Plaintiff failed to demonstrate diligent efforts to serve Ramis. Rather, he notes, although the Plaintiff claims to have made diligent efforts to serve Ramis by letters Togaiory, counsel had not appended the purported letters rogatory as an exhibit. Further, counsel had not proffered an affidavit from a process server or provided any 20f 4 INDEX NO. EF000778-2023 FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023 details as to the alleged diligent effort made. In addition, he argues, while the Plaintiff is correct that Uruguay is a not a signatory to the Hague Convention, this does not foreclose all options for service of process. Rather, the United States of America and Uruguay are signatory countries to the inter- American Convention on Letters Rogatory and Additional Protocol (“IACAP”), which provides for the issuance of letters rogatory. In sum, he asserts, Ramis’s motion should be granted and the Plaintiff's cross motion denied. Discussion/Legal Analysis In relevant part, CPLR 306-b provides that service of a summons with notice shall be made within 120 twenty days after filing. Ifnot, the matter is subject to dismissal. However, the Court may extend the time for service, “upon good cause shown or in the interest of justice.” CER 306-b. The Court of Appeals has made clear that these are two distinct standards. An extension for “good cause shown” requires a showing of reasonably diligent efforts at service.as athreshold matter. Leader y. Maroney, Ponzini & Spencer, 97 N.Y .2d 95 (2001); Baumann & Sons Buses, Inc. v. Ossining Union Free School Dist., 121 A.D.3d 1110 [2™ Dept. 2014]. By contrast, “[t]he 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. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, 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 the extension of time, and prejudice to defendant.” 3 0f 4 INDEX NO. EF000778-2023 FILED: ORANGE COUNTY CLERK 10725/2023 02:02 PM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/25/2023 Leader v. Maroney, Ponzini & Spencer, 97 N.Y .2d 95 (2001); see also, Baumann & Sons Buses, Ine. v. Ossining Union Free School Dist., 121 A.D.3d 1110 [2"4 Dept. 2014]. Here, applying this standard, Ramis’ motion is denied and the Plaintiffs cross motion is granted for both good cause shown and in the interest of justice. Accordingly, and for the reasons cited herein, it is hereby, ORDERED, that the motion is denied and the cross motion is granted, and the Plaintiff is granted an additional 120 days within which to serve the Defendant Ivonne Alicia Ventura Ramis; and it is further, ORDERED, that the parties, by counsel, if retained, are to appear for a conference on Wednesday, March 13, 2024, at 9:30 a.m., at the Orange County Court House, Court room #3, 285 Main Street, Goshen, New York, unless a motion to renew is filed prior to that time. The foregoing constitutes the decision and order of the court. Dated: October 25, 2023 ENTER, Goshen, N.Y. TO SOBO & SOBO, LLP Attomeys for Plaintiff Office & P.O. Box One Dolson Avenue Middletown, New York 10940 PILLINGER MILLER TARALLO, LLP Attomeys for Defendants 555 Taxter Road, 5" Floor Elmsford, New York 1052 4 of 4