Preview
FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Evaristo Parabal,
Plaintiff,
- against - Index No. 702097/2023
Uncle Jimmy’s Pizzeria Corp. d/b/a Uncle Jimmy’s
Pizzeria, Jimmy Canarozzi and Victoria Canarozzi,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR
EXTENSION OF TIME TO COMPLETE SERVICE AND REQUEST OF
ALTERNATIVE SERVICES ON INDIVIDUAL DEFENDANTS
Yongjin Bae, Esq.
Attorney for Plaintiff
136-20 38th Ave, S10G
Flushing, NY 11354
(718) 353-8588
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Introduction
Plaintiff Evaristo Parabal respectfully submits this Memorandum of Law in support of
its motion, pursuant to 306-b of the Civil Practice Law and Rules ("CPLR 306-b"), seeking this
Court to extend the time for service of the summons and complaint on Defendants Jimmy
Canarozzi and Victoria Canarozzi (collectively “Defendants”) in this action.
Factual and Procedural History
This action commenced on January 27, 2023 by filing the proposed summons and
complaint.
The same week after filing the complaint, Hang & Associate, PLLC arranged service
company, United Process Service, Inc. to complete service at Defendants’ last known business
address 5102 Northern Blvd Woodside, NY 11377.
On February 16, 2023, Server attempted the address but could not serve Defendants as
Defendant’s business was closed. Ex. A.
Plaintiff took some time to research and investigate Defendants’ potential residential
address in order to serve the Defendants personally, and on or around June 12, 2023, he found
Defendant Jimmy Canarozzi and Victoria Canarozzi’s residential addresses 3910 44th Street #
2, Sunnyside NY 11104.
Plaintiff took some time to research and investigates individual Defendants’ potential
residential addresses in order to serve the Defendants personally, and on or around June 12,
2023, he found Defendant Jimmy Canarozzi and Victoria Canarozzi’s residential address at
3910 44th Street # 2, Sunnyside NY 11104. On June 15, 2023, the process server attempted to
serve the Summons and Complaint on individual Defendants at 3910 44th Street # 2, Sunnyside
NY 11104, but the service was not made. Ex. B
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Plaintiff filed the motion for extension of service on individual defendants and for
alternative service on individual defendants on July 15, 2023. Dkt No. 10-16
The Court granted the motion and extended the time to serve the Summons and
Complaint until November 15, 2023. Dkt No. 25.
While conducting diligent research on individual Defendants’ address and
communication with Plaintiff, undersigned was informed that individual defendants opened his
business again at 5102 Northern Blvd Woodside, NY 11377.
On November 14, 2023, the process server made another attempt to serve the Summons
and Complaint on individual defendants at their last known business address at 5102 Northern
Blvd Woodside, NY 11377. The Server found out that the premise is vacant and appears to be
under construction. Ex. C
On November 14, 2023, the process server also tried to serve the Summons and
Complaint on individual defendants at their last known residential address at 3910 44th Street,
Sunnyside NY 11104 and spoke with current resident Jane Doe, stated recipient moved out years
ago. Ex. D
After all the attempts to serve the Summons and Complaint on individual defendants
failed, undersigned further researched on Defendants and gave additional information in
associated with individual defendants and requested United Process Service to conduct further
search via DMV and/or voter’s registration.
Plaintiffs Request that the Court Extend its Time for Service
CPLR 306-b provides that:
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 [A]ction, provided that in an [A]ction, except a proceeding commenced
under the election law, where the applicable statute of limitations is four months
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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.
Thus, in the instance where plaintiffs can demonstrate good cause for the failure to timely
serve the complaint, a court must extend the time to effect service. Bumpus v. N.Y.C. Transit
Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); see also Kazimierski v New York Univ.,
796 NYS2d 638 (2005); Kulpa v Jackson, 773 NYS2d 235 (2004). In determining the presence
of good cause, good cause may be found to exist where a plaintiff makes a reasonably diligent
effort at service (see e.g. Kazimierski v New York Univ., 796 NYS2d 638 (2005); Baione v
Central Suffolk Hosp., 789 NYS2d 315 (2005); Busler v Corbett, 696 NYS2d 615 (1999)).
Further, a good cause may be found to exist where the plaintiff's failure to timely serve process
is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate
Corp. v Spallone, 831 NYS2d 357 (2006), citing Eastern Refractories Co., Inc. v Forty Eight
Insulations, Inc., 187 FRD 503, 505 (1999); see also Greco v Renegades, Inc., 761 NYS2d 426
(2003) (difficulties of service associated with locating defendant enlisted in military); Kulpa v
Jackson, 773 NYS2d 235 (2004) (difficulties associated with service abroad through the Hague
Convention); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.)
In addition to the mandatory extension triggered by a showing of good cause, courts are
vested with broad discretion to grant extensions even in the absence of good cause. Leader v.
Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105
(App. Div. 2nd Dept.); Gunderson Amazing Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist.
LEXIS 113353 at *8 (noting that there is "wide latitude in deciding when to grant extensions
absent good cause"). Although not definitive, courts may consider the following in the absence
of good cause: "whether the applicable statute of limitations would bar the refiled action;
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whether the defendant had actual notice of the claims asserted in the complaint; whether the
defendant attempted to conceal the defect in service; and whether the defendant would be
prejudiced by the granting of plaintiff's request for relief from the provision." See Gunderson,
2016 U.S. Dist. LEXIS 113353 at *8 (citations omitted); Jones v. Westchester Cty., 2016 U.S.
Dist. LEXIS 136037 (S.D.N.Y. Sept. 30, 2016).
Good Cause
Applying the principles articulated above to the facts presented in this case, plaintiff
maintains that it has established good cause for this Court to grant an extension of time for
service on the defendants. As this Court is well aware, due to the COVID-19’s highly spread
speed, the hospitality industry was severely harmed, and many restaurant businesses had to close
or had changed their business time.
Plaintiff has established two factors for good cause, as addressed above: 1) the
reasonableness and diligence of plaintiffs’ efforts to serve, and 2) the lack of prejudice to the
moving defendants for the delay.
Plaintiff here has taken diligent and reasonable efforts to serve. Plaintiff’s server has
tried the business address; however, Plaintiff was not able to serve Defendants at their business
address because their business was closed, which is out of Plaintiff’s control. Further, Plaintiff
spent some time searching Defendants’ possible residential address and found individual
Defendants’ potential residential address.
As for the second factor for this Court to consider, prejudice to the moving defendants
for the delay; there is simply no proof in this record that the defendants suffered any prejudice
by the delay since Plaintiff has not moved a default judgment.
Discretionary Extension in the Absence of Good Cause
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Even if this Court determines that plaintiffs have not established good cause, mandating
an extension of time within which to effect service, as noted above this record provides a
strikingly firm basis for the Court to exercise its discretion and grant the relief sought. " A court
may grant an extension in the absence of good cause shown, but is not required to do so." Leader
v. Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105
(App. Div. 2nd Dept.); Gunderson Amazing Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist.
LEXIS 113353 at *8. By way of reiteration, the four factors to be considered in determining
whether to grant a discretionary extension of the service deadline are "(1) whether the applicable
statute of limitations would bar the refiled action; (2) whether the defendant had actual notice
of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the
defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiffs
request for relief from the provision." Leader v. Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus
v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); Gunderson Amazing
Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist. LEXIS 113353 at *8. Here, Plaintiff properly
attempted to serve Defendants at their last known business, however, the business was closed.
It’s clear that the failure to serve is not due to Plaintiff’s fault and in the interest of justice,
Plaintiff shall be given the extension of time to complete the service on Defendants at the newly
discovered address.
Conclusion
Accordingly, plaintiffs respectfully request that, pursuant to CPLR 306-b., that this Court
grant plaintiff an extension of time to effect service of the instant summons and complaint within
90 days of issuance of the order granting this motion.
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Dated: Flushing, New York
November 15, 2023
Hang & Associates, PLLC.
/s/ Yongjin Bae
Yongjin Bae, Esq.
Attorneys for the Plaintiff
136-20 38th Avenue, Suite 10G
Flushing, NY 11354
T: (718) 353-8588
F: (718) 353-6288
ybae@hanglaw.com
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Preview
FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Evaristo Parabal, Plaintiff, - against - Index No. 702097/2023 Uncle Jimmy’s Pizzeria Corp. d/b/a Uncle Jimmy’s Pizzeria, Jimmy Canarozzi and Victoria Canarozzi, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO COMPLETE SERVICE AND REQUEST OF ALTERNATIVE SERVICES ON INDIVIDUAL DEFENDANTS Yongjin Bae, Esq. Attorney for Plaintiff 136-20 38th Ave, S10G Flushing, NY 11354 (718) 353-8588 1 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 Introduction Plaintiff Evaristo Parabal respectfully submits this Memorandum of Law in support of its motion, pursuant to 306-b of the Civil Practice Law and Rules ("CPLR 306-b"), seeking this Court to extend the time for service of the summons and complaint on Defendants Jimmy Canarozzi and Victoria Canarozzi (collectively “Defendants”) in this action. Factual and Procedural History This action commenced on January 27, 2023 by filing the proposed summons and complaint. The same week after filing the complaint, Hang & Associate, PLLC arranged service company, United Process Service, Inc. to complete service at Defendants’ last known business address 5102 Northern Blvd Woodside, NY 11377. On February 16, 2023, Server attempted the address but could not serve Defendants as Defendant’s business was closed. Ex. A. Plaintiff took some time to research and investigate Defendants’ potential residential address in order to serve the Defendants personally, and on or around June 12, 2023, he found Defendant Jimmy Canarozzi and Victoria Canarozzi’s residential addresses 3910 44th Street # 2, Sunnyside NY 11104. Plaintiff took some time to research and investigates individual Defendants’ potential residential addresses in order to serve the Defendants personally, and on or around June 12, 2023, he found Defendant Jimmy Canarozzi and Victoria Canarozzi’s residential address at 3910 44th Street # 2, Sunnyside NY 11104. On June 15, 2023, the process server attempted to serve the Summons and Complaint on individual Defendants at 3910 44th Street # 2, Sunnyside NY 11104, but the service was not made. Ex. B 2 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 Plaintiff filed the motion for extension of service on individual defendants and for alternative service on individual defendants on July 15, 2023. Dkt No. 10-16 The Court granted the motion and extended the time to serve the Summons and Complaint until November 15, 2023. Dkt No. 25. While conducting diligent research on individual Defendants’ address and communication with Plaintiff, undersigned was informed that individual defendants opened his business again at 5102 Northern Blvd Woodside, NY 11377. On November 14, 2023, the process server made another attempt to serve the Summons and Complaint on individual defendants at their last known business address at 5102 Northern Blvd Woodside, NY 11377. The Server found out that the premise is vacant and appears to be under construction. Ex. C On November 14, 2023, the process server also tried to serve the Summons and Complaint on individual defendants at their last known residential address at 3910 44th Street, Sunnyside NY 11104 and spoke with current resident Jane Doe, stated recipient moved out years ago. Ex. D After all the attempts to serve the Summons and Complaint on individual defendants failed, undersigned further researched on Defendants and gave additional information in associated with individual defendants and requested United Process Service to conduct further search via DMV and/or voter’s registration. Plaintiffs Request that the Court Extend its Time for Service CPLR 306-b provides that: 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 [A]ction, provided that in an [A]ction, except a proceeding commenced under the election law, where the applicable statute of limitations is four months 3 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 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. Thus, in the instance where plaintiffs can demonstrate good cause for the failure to timely serve the complaint, a court must extend the time to effect service. Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); see also Kazimierski v New York Univ., 796 NYS2d 638 (2005); Kulpa v Jackson, 773 NYS2d 235 (2004). In determining the presence of good cause, good cause may be found to exist where a plaintiff makes a reasonably diligent effort at service (see e.g. Kazimierski v New York Univ., 796 NYS2d 638 (2005); Baione v Central Suffolk Hosp., 789 NYS2d 315 (2005); Busler v Corbett, 696 NYS2d 615 (1999)). Further, a good cause may be found to exist where the plaintiff's failure to timely serve process is a result of circumstances beyond the plaintiff's control (see U.S. 1 Brookville Real Estate Corp. v Spallone, 831 NYS2d 357 (2006), citing Eastern Refractories Co., Inc. v Forty Eight Insulations, Inc., 187 FRD 503, 505 (1999); see also Greco v Renegades, Inc., 761 NYS2d 426 (2003) (difficulties of service associated with locating defendant enlisted in military); Kulpa v Jackson, 773 NYS2d 235 (2004) (difficulties associated with service abroad through the Hague Convention); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.) In addition to the mandatory extension triggered by a showing of good cause, courts are vested with broad discretion to grant extensions even in the absence of good cause. Leader v. Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); Gunderson Amazing Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist. LEXIS 113353 at *8 (noting that there is "wide latitude in deciding when to grant extensions absent good cause"). Although not definitive, courts may consider the following in the absence of good cause: "whether the applicable statute of limitations would bar the refiled action; 4 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 whether the defendant had actual notice of the claims asserted in the complaint; whether the defendant attempted to conceal the defect in service; and whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision." See Gunderson, 2016 U.S. Dist. LEXIS 113353 at *8 (citations omitted); Jones v. Westchester Cty., 2016 U.S. Dist. LEXIS 136037 (S.D.N.Y. Sept. 30, 2016). Good Cause Applying the principles articulated above to the facts presented in this case, plaintiff maintains that it has established good cause for this Court to grant an extension of time for service on the defendants. As this Court is well aware, due to the COVID-19’s highly spread speed, the hospitality industry was severely harmed, and many restaurant businesses had to close or had changed their business time. Plaintiff has established two factors for good cause, as addressed above: 1) the reasonableness and diligence of plaintiffs’ efforts to serve, and 2) the lack of prejudice to the moving defendants for the delay. Plaintiff here has taken diligent and reasonable efforts to serve. Plaintiff’s server has tried the business address; however, Plaintiff was not able to serve Defendants at their business address because their business was closed, which is out of Plaintiff’s control. Further, Plaintiff spent some time searching Defendants’ possible residential address and found individual Defendants’ potential residential address. As for the second factor for this Court to consider, prejudice to the moving defendants for the delay; there is simply no proof in this record that the defendants suffered any prejudice by the delay since Plaintiff has not moved a default judgment. Discretionary Extension in the Absence of Good Cause 5 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 Even if this Court determines that plaintiffs have not established good cause, mandating an extension of time within which to effect service, as noted above this record provides a strikingly firm basis for the Court to exercise its discretion and grant the relief sought. " A court may grant an extension in the absence of good cause shown, but is not required to do so." Leader v. Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); Gunderson Amazing Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist. LEXIS 113353 at *8. By way of reiteration, the four factors to be considered in determining whether to grant a discretionary extension of the service deadline are "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiffs request for relief from the provision." Leader v. Maroney, 97 N.Y.2d 95, 105 (2001); Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2nd Dept.); Gunderson Amazing Fireworks, LLC v. Merrick Bank, 2016 U.S. Dist. LEXIS 113353 at *8. Here, Plaintiff properly attempted to serve Defendants at their last known business, however, the business was closed. It’s clear that the failure to serve is not due to Plaintiff’s fault and in the interest of justice, Plaintiff shall be given the extension of time to complete the service on Defendants at the newly discovered address. Conclusion Accordingly, plaintiffs respectfully request that, pursuant to CPLR 306-b., that this Court grant plaintiff an extension of time to effect service of the instant summons and complaint within 90 days of issuance of the order granting this motion. 6 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 05:33 PM INDEX NO. 702097/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 11/15/2023 Dated: Flushing, New York November 15, 2023 Hang & Associates, PLLC. /s/ Yongjin Bae Yongjin Bae, Esq. Attorneys for the Plaintiff 136-20 38th Avenue, Suite 10G Flushing, NY 11354 T: (718) 353-8588 F: (718) 353-6288 ybae@hanglaw.com 7 of 7