Preview
FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF KINGS
UNITRIN AUTO AND HOME INSURANCE a/s/o
MARZELLA SEARLES,
Plaintiff
ATTORNEY
AFFIRMATION
-against-
Index No.:
DERRICK SMITH, 509143/2022
Defendant,
STATE OF NEW YORK )
) ss.:
COUNTYOFALBANY )
DANIEL W. COFFEY, being duly sworn, deposes and says:
1. I am an attorney duly licensed to practice law before this Court and the courts of this State and am
a member of the firm of COFFEY LAW PLLC, attorney of record for the Plaintiff, Unitrin Auto and Home
Insurance as subrogee of Mazella Searles ("Unitron"), in this matter.
2. I am fully familiar with the facts and circumstances herein and make this affirmation in support of
Plaintiff's Motion per CPLR 306-b to extend time for Plaintiff to make a motion for Judgment by Default as
against Defendant Derrick Smith.
3. The following exhibits are attached hereto and incorporated by reference:
Exhibit A: Summons and Complaint
Exhibit B: Affidavit of Non-Service
Exhibit C: Proposed Order
4. This is an action to recover property damages paid by Unitrin to or on behalf of its insured,
Marzella Searles, pursuant to a homeowner's insurance policy. On or about November 8, 2020, Mr. Smith failed
to properly maintain and secure his property at 102 Graton Street, Brooklyn, NY, which allowed a fire to start and
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Searles'
spread to Marezella neighboring property. Mr. Smith's negligence caused extensive smoke and water
Searles'
damage to Marzella property, for which plaintiff Unitrin was caused to pay $60,833.71 (which amount
includes the insured's $1,000 deductible) (Coffey Ex. A).
5. This action was timely commenced on March 29, 2022, by the purchase of an index number and
the filing of a summons and complaint. A copy of the summons and complaint with the stamped index number
is attached hereto as Exhibit A.
6. Unitrin provided copies of the summons and complaint to Tropical Process Serving on May 11,
2022 for service.
7. Tropical Process Serving was unable to complete service on Mr. Smith, so Unitrin provided copies
of the summons and complaint to a second process service company, SG Legal Support Services, Inc.
8. On or about July 22, 2022, SG Legal Support Services, Inc. attempted service at Mr. Smith's last
known address. However, the residence at that address was vacant.
9. Unitrin and SG Legal Support Services, Inc. are working to obtain a new address for Mr. Smith in
order to perfect service. Indeed, the undersigned recently located a new potential address for Mr. Smith. A copy
B.¹
of an Affidavit of Conspicuous Service for Index No. LT-301165-22/BX is attached hereto as Exhibit
10. Accordingly, Unitrin respectfully requests an extension of time to perfect service upon Mr. Smith
pursuant to CPLR 306-b. Specifically, Unitrin requests an additional 90 days to perfect service on Mr. Smith.
11. Under CPLR 306-b, "[s]ervice of the summons and complaint . . . shall be made within one
proceeding."
hundred twenty days after the commencement of the action or However, the time to serve may be
extended and the Legislature gave the courts two separate standards by which to measure an application for an
shown" justice."
extension of time: "upon good cause ol: "in the interest of Leader v. Maroney, 97 N.Y.2d 95,
1
It appears that the plaintiff in that case has been unable to serve Mr. Smith as well. See Ex. B.
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104, 761 N.E.2d 1018, 1024, 736 N.Y.S.2d 291, 297 (2001). The Court found that "an exercise of reasonable
cause."
diligence in attempting service would surely count as good Leader, 97 N.Y.2d at 104.
cause"
12. A "good extension requires a showing of reasonable diligence in attempting to effect
service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to
control"
be found where "the plaintiffs failure to timely serve process is a result of circumstances beyond [its]
(2nd
(Bumpus v New York City Tr Auth., 66 AD3d 26, 32, 883 NYS2d 99 Dept 2009) [noting difficulties of
service with person in military or difficulties with service abroad through Hague Convention]).
shown,"
13. CPLR 306-b provides for an additional and broader standard than "good cause i.e., the
justice,'
'interest of to accommodate late service that might be due to mistake, confusion or oversight, so long
defendant."
as there is no prejudice to the Leader, 97 N.Y.2d at 105. The Court continued
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. 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 plaintiffs request for the extension of time, and prejudice to defendant.
Leader, 97 N.Y.2d at 105-106.
14. Granting plaintiff the opportunity to pursue an action is not only consistent with the 'interest of
justice'
exception set forth in CPLR 306-b, but also with the court's strong interest in deciding cases on the
merits where possible. Henneberry v Borstein, 91 AD3d 493, 497, 937 N.Y.S.2d 177 (1st Dept 2012).
While CPLR 306-b does not require that a motion for a service extension be filed before the expiration of the
120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are
(2nd
more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476 Dept 2000)),
as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State
(3rd
Off of Children & Family Servs., 53 AD3d 810, 810-811 Dept 2008)).
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15. Good cause exists to grant the requested extension. Unitrin has already retained two separate
process servers to locate Mr. Smith. When its first process server was unable to do so, Unitrin retained SG Legal
Support Services, Inc. to assist in these efforts. Unitrin and SG Legal Support Services, Inc. are diligently working
to locate Mr. Smith and are following up on a new lead. See supra ¶ 8.
16. The requested extension should also be granted in the interest of justice. Indeed, Unitrin brings
this action to recover damages it paid to its insured based upon a fire caused by Mr. Smith's negligence. Unitrin's
damages are significant - $60,833.71 - and Mr. Smith will suffer no prejudice the requested extension.
by See,
e.g., Busler v. Corbett, 259 A.D.2d 13, 17, 696 N.Y.S.2d 615, 618 (N.Y. App. Div. 4th Dept 1999) (extension of
time to serve granted in interests of justice despite plaintiff's failure to establish good cause and untimely request
for an extension); Bertucci v. Mosey, 45 A.D.3d 1385, 1387, 846 N.Y.S.2d 486, 487 (N.Y. App. Div. 4th Dept
2007) (extension granted in interests of justice where, among other things, plaintiff brought a meritorious claim
against the defendant).
17. In short, good cause exists for granting the relief requested. Notwithstanding, the interests of
justice weight in favor of and will be best served by granting the present motion.
18. No previous application has been made for the relief requested to this or any other Court.
19. Plaintiff is asking the Court for an additional ninety (90) from the date of the Court's order to
locate and serve Defendant.
20. We thank the Court for its time and consideration. A proposed Order is supplied (Ex. C).
DATED: March 19, 2024 COFFE LAW P C
B .
Damel W. ey
Attorneys f Plaintiff
17 Elk Str t
Albany, New York 12207
(518)-813-9500
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TO: VIA FC MAIL:
Derrick Smith
Defendant Pro Se
102 Grafton Street
Brooklyn, NY 11212
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Preview
FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF KINGS UNITRIN AUTO AND HOME INSURANCE a/s/o MARZELLA SEARLES, Plaintiff ATTORNEY AFFIRMATION -against- Index No.: DERRICK SMITH, 509143/2022 Defendant, STATE OF NEW YORK ) ) ss.: COUNTYOFALBANY ) DANIEL W. COFFEY, being duly sworn, deposes and says: 1. I am an attorney duly licensed to practice law before this Court and the courts of this State and am a member of the firm of COFFEY LAW PLLC, attorney of record for the Plaintiff, Unitrin Auto and Home Insurance as subrogee of Mazella Searles ("Unitron"), in this matter. 2. I am fully familiar with the facts and circumstances herein and make this affirmation in support of Plaintiff's Motion per CPLR 306-b to extend time for Plaintiff to make a motion for Judgment by Default as against Defendant Derrick Smith. 3. The following exhibits are attached hereto and incorporated by reference: Exhibit A: Summons and Complaint Exhibit B: Affidavit of Non-Service Exhibit C: Proposed Order 4. This is an action to recover property damages paid by Unitrin to or on behalf of its insured, Marzella Searles, pursuant to a homeowner's insurance policy. On or about November 8, 2020, Mr. Smith failed to properly maintain and secure his property at 102 Graton Street, Brooklyn, NY, which allowed a fire to start and 1 of 5 FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 Searles' spread to Marezella neighboring property. Mr. Smith's negligence caused extensive smoke and water Searles' damage to Marzella property, for which plaintiff Unitrin was caused to pay $60,833.71 (which amount includes the insured's $1,000 deductible) (Coffey Ex. A). 5. This action was timely commenced on March 29, 2022, by the purchase of an index number and the filing of a summons and complaint. A copy of the summons and complaint with the stamped index number is attached hereto as Exhibit A. 6. Unitrin provided copies of the summons and complaint to Tropical Process Serving on May 11, 2022 for service. 7. Tropical Process Serving was unable to complete service on Mr. Smith, so Unitrin provided copies of the summons and complaint to a second process service company, SG Legal Support Services, Inc. 8. On or about July 22, 2022, SG Legal Support Services, Inc. attempted service at Mr. Smith's last known address. However, the residence at that address was vacant. 9. Unitrin and SG Legal Support Services, Inc. are working to obtain a new address for Mr. Smith in order to perfect service. Indeed, the undersigned recently located a new potential address for Mr. Smith. A copy B.¹ of an Affidavit of Conspicuous Service for Index No. LT-301165-22/BX is attached hereto as Exhibit 10. Accordingly, Unitrin respectfully requests an extension of time to perfect service upon Mr. Smith pursuant to CPLR 306-b. Specifically, Unitrin requests an additional 90 days to perfect service on Mr. Smith. 11. Under CPLR 306-b, "[s]ervice of the summons and complaint . . . shall be made within one proceeding." hundred twenty days after the commencement of the action or However, the time to serve may be extended and the Legislature gave the courts two separate standards by which to measure an application for an shown" justice." extension of time: "upon good cause ol: "in the interest of Leader v. Maroney, 97 N.Y.2d 95, 1 It appears that the plaintiff in that case has been unable to serve Mr. Smith as well. See Ex. B. 2 of 5 FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 104, 761 N.E.2d 1018, 1024, 736 N.Y.S.2d 291, 297 (2001). The Court found that "an exercise of reasonable cause." diligence in attempting service would surely count as good Leader, 97 N.Y.2d at 104. cause" 12. A "good extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to control" be found where "the plaintiffs failure to timely serve process is a result of circumstances beyond [its] (2nd (Bumpus v New York City Tr Auth., 66 AD3d 26, 32, 883 NYS2d 99 Dept 2009) [noting difficulties of service with person in military or difficulties with service abroad through Hague Convention]). shown," 13. CPLR 306-b provides for an additional and broader standard than "good cause i.e., the justice,' 'interest of to accommodate late service that might be due to mistake, confusion or oversight, so long defendant." as there is no prejudice to the Leader, 97 N.Y.2d at 105. The Court continued 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. 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 plaintiffs request for the extension of time, and prejudice to defendant. Leader, 97 N.Y.2d at 105-106. 14. Granting plaintiff the opportunity to pursue an action is not only consistent with the 'interest of justice' exception set forth in CPLR 306-b, but also with the court's strong interest in deciding cases on the merits where possible. Henneberry v Borstein, 91 AD3d 493, 497, 937 N.Y.S.2d 177 (1st Dept 2012). While CPLR 306-b does not require that a motion for a service extension be filed before the expiration of the 120-day statutory period (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 106-07), prompt motions are (2nd more likely to be successful (id.; Scarabaggio v Olympia & York Estates Co., 278 AD2d 476 Dept 2000)), as they are a sign of diligence, whereas dilatory motions are less so (see Matter of Anonymous v New York State (3rd Off of Children & Family Servs., 53 AD3d 810, 810-811 Dept 2008)). 3 of 5 FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 15. Good cause exists to grant the requested extension. Unitrin has already retained two separate process servers to locate Mr. Smith. When its first process server was unable to do so, Unitrin retained SG Legal Support Services, Inc. to assist in these efforts. Unitrin and SG Legal Support Services, Inc. are diligently working to locate Mr. Smith and are following up on a new lead. See supra ¶ 8. 16. The requested extension should also be granted in the interest of justice. Indeed, Unitrin brings this action to recover damages it paid to its insured based upon a fire caused by Mr. Smith's negligence. Unitrin's damages are significant - $60,833.71 - and Mr. Smith will suffer no prejudice the requested extension. by See, e.g., Busler v. Corbett, 259 A.D.2d 13, 17, 696 N.Y.S.2d 615, 618 (N.Y. App. Div. 4th Dept 1999) (extension of time to serve granted in interests of justice despite plaintiff's failure to establish good cause and untimely request for an extension); Bertucci v. Mosey, 45 A.D.3d 1385, 1387, 846 N.Y.S.2d 486, 487 (N.Y. App. Div. 4th Dept 2007) (extension granted in interests of justice where, among other things, plaintiff brought a meritorious claim against the defendant). 17. In short, good cause exists for granting the relief requested. Notwithstanding, the interests of justice weight in favor of and will be best served by granting the present motion. 18. No previous application has been made for the relief requested to this or any other Court. 19. Plaintiff is asking the Court for an additional ninety (90) from the date of the Court's order to locate and serve Defendant. 20. We thank the Court for its time and consideration. A proposed Order is supplied (Ex. C). DATED: March 19, 2024 COFFE LAW P C B . Damel W. ey Attorneys f Plaintiff 17 Elk Str t Albany, New York 12207 (518)-813-9500 4 of 5 FILED: KINGS COUNTY CLERK 03/20/2024 01:29 PM INDEX NO. 509143/2022 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/20/2024 TO: VIA FC MAIL: Derrick Smith Defendant Pro Se 102 Grafton Street Brooklyn, NY 11212 5 of 5