In this RPAPL article 15 action that was transferred to this court from the Supreme Court, Bronx County, the preliminary executor moves, pursuant to CPLR 3211(a)(8), to dismiss the action for lack of personal jurisdiction, and the plaintiffs cross-move, pursuant to CPLR 306-b, to extend their time to serve the preliminary executor.

The plaintiffs seek to set aside a deed executed by the decedent's sister, Rose Tilimbo, on October 13, 2000, transferring to the decedent her 50% interest in real property in the Bronx. The complaint, filed on February 16, 2005, alleges, inter alia, that Rose, as a result of undue influence exerted upon her by the decedent, conveyed to the decedent her 50% interest in the Bronx realty. The complaint also contains a cause of action alleging that the decedent converted funds held in a joint bank account with Rose. The plaintiffs in the action are Rose and a niece and nephew of the decedent who allege that they own the remaining 50% interest in the realty.

On February 22, 2005, the plaintiffs attempted to serve the decedent by substituted service while he was a patient at Calvary Hospital, by delivering the summons and complaint to a person who allegedly agreed to accept service on the decedent's behalf, and mailing a copy to the decedent at that facility on the following day. Proof of service was filed on March 1, 2005. The decedent died at Calvary Hospital on April 2, 2005, leaving five distributees including Rose and the other two plaintiffs.

Marilyn Posimato, apparently a non-relative, is the sole beneficiary under a testamentary instrument purportedly executed by the decedent on January 24, 2001. That instrument is the subject of a will contest and, upon a motion by the plaintiffs in the transferred action, this court [*2]consented to receive the transferred action for trial and, because the action could not proceed until a fiduciary was appointed in the decedent's estate, the court invited the plaintiffs to "seek the appointment of a temporary administrator in the event that the proponent does not seek preliminary letters by November 3, 2006" (Matter of Tilimbo, NYLJ, Oct. 18, 2006, at 35, col 5).

Thereafter, preliminary letters testamentary issued to the proponent, John A. Posimato, and the plaintiffs and the preliminary executor stipulated and agreed, to: (1) transfer the Supreme Court action to this court; (2) substitute John Posimato, in his capacity as preliminary executor, as a party defendant in the transferred action; and, (3) extend the time for the preliminary executor to appear, answer or otherwise plead in the action to 30 days from the date that the action was transferred to this court. By order dated January 16, 2007, that stipulation was "so-ordered" by the Supreme Court, Bronx County (Renwick, J. ).

In his CPLR 3211(a)(8) motion, the preliminary executor asserts that service upon the decedent in Calvary Hospital was ineffective, as the person who accepted service was not the decedent's authorized representative, substituted service to a person of suitable age and discretion did not occur at the decedent's actual place of business, dwelling or usual place of abode, and the mailing was not made to the decedent's last known residence, as required by CPLR 308(2). In further support, the preliminary executor notes that while he was at Calvary Hospital, the decedent was not ambulatory, was incommunicative and was heavily sedated, so he lacked the capacity to understand any legal papers handed to him. In any event, the preliminary executor notes that he never saw any legal papers in the decedent's room.

In response to the motion the plaintiffs cross-move, pursuant to CPLR 306-b, to extend the time to serve the summons and complaint contending, inter alia, that: (1) service was made on a person at Calvary Hospital who advised the process server that she would accept service for the decedent, and the summons and complaint were mailed to the decedent at his hospital room; (2) service on the decedent was only complete 10 days after the filing of the affidavit of service on March 1, 2005 (see CPLR 308[2]), so the decedent had 30 days from March 11, 2005 to answer the complaint or make a pre-answer motion to dismiss (see CPLR 3012[c]); (3) the decedent died on April 2, 2005, days prior to the expiration of his time to answer the complaint; (4) upon the decedent's death, the action was automatically stayed until the substitution of a proper party defendant (see CPLR 1015; EPTL 11-3.2); (5) preliminary letters testamentary did not issue until November 28, 2006; and, (6) at all times, the attorney for the preliminary executor was aware of the action.

In support of their motion, the plaintiffs annex an affidavit by the process server who states that while he does not recall the specifics of service on the decedent at Calvary Hospital, his usual custom and practice when effectuating service at a hospital is to identify himself as a process server, ask who will accept service on behalf of the patient, hand that person the summons and complaint and take identifying information, and then mail the summons and complaint to the patient at the hospital. The preliminary executor did not file any opposition to the cross motion.

With respect to whether personal jurisdiction was obtained over the decedent, CPLR 308(2) permits substituted service by delivery of the summons and complaint to a person of suitable age and discretion at "the actual place of business, dwelling place or usual place of abode of the person to be served" and by mailing a copy by first class mail to, inter alia, the [*3]person's "last known residence" (CPLR 308[2]). The affidavit of the process server submitted by the plaintiffs clearly establishes that substituted service on a person of suitable age and discretion at Calvary Hospital did not comport with that statute, as Calvary Hospital did not constitute the decedent's actual place of business, dwelling place, or usual place of abode. Even assuming, arguendo, that a hospice such as Calvary Hospital can constitute a person's actual dwelling place or usual place of abode, for purposes of the follow-up mailing, Calvary Hospital did not constitute the decedent's last known residence. As a result, the service effectuated by the plaintiffs during the decedent's lifetime failed to obtain personal jurisdiction over him (see CPLR 308[2]; Feinstein v Bergner, 48 NY2d 234 [1979][for purposes of CPLR 308(2) neither actual "dwelling place" nor "usual place of abode" may be equated with "last known residence"]).

Nonetheless, CPLR 306-b allows the court, upon motion and either "good cause shown" or "in the interest of justice," to extend the time for service where service is not made within 120 days after the filing of the summons and complaint. Even assuming, arguendo, that the "good cause shown" test was not met by the plaintiffs' single attempt at service (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]; Valentin v Zaltsman, 39 AD3d 852 [2007]; Spath v Zack, 36 AD3d 410 [2007]; Wilkins v Burgess, 25 AD3d 794 [2006]; Mead v Singleman, 24 AD3d 1142 [2005]), the plaintiff's cross motion should nevertheless be granted "in the interest of justice" under CPLR 306-b. The "interest of justice" standard is broader than the "good cause shown" test and permits the court to consider many factors, including the statute of limitations, the meritorious nature of the cause of action, due diligence in service or the lack thereof, the length of delay in service, the promptness of the plaintiffs' request for the extension of time, and prejudice to the defendants (see Leader, 97 NY2d at 105-106; Spath, 36 AD3d at 410; Rosenzweig v 600 N. St., LLC, 35 AD3d 705 [2006]; Mead, 24 AD3d at 1144; Lippett v Educ. Alliance, 14 AD3d 430 [2005]). Factors favoring an extension under the interest of justice standard are timely service within the 120-day period allowed by CPLR 306-b, which service was later found to be defective, and the defendants' actual notice of the claim and/or the action (see Spath, 36 AD3d at 410; Rosenzweig, 35 AD3d at 705; Mead, 24 AD3d at 1144; Lippett, 14 AD3d at 431, 432).

Here, service and the filing of proof of service was attempted and apparently in good faith believed to have been made within the 120-day period of CPLR 306-b, although the service was defective. Based upon the present state of the record it appears that the six-year statute of limitations period for undue influence accrued and commenced on the date the deed was given by Rose to the decedent, on October 13, 2000, and the summons and complaint were filed on February 16, 2005, prior to the expiration of the limitations period on October 12, 2006 (see CPLR 213[1]). It is undisputed that the preliminary executor was aware of the pendency of the action, and the delay in making the cross motion for an extension of time to serve was the result of the decedent's death and the need to obtain the appointment of, and substitute, the personal representative of the estate as a party defendant (see CPLR 1015; EPTL 11-3.2; see also CPLR 210[b]). Moreover, it would be inequitable to permit the proponent's delay of approximately 18 months in applying for preliminary letters testamentary in the probate proceeding to result in the dismissal of the complaint and to thereafter permit the preliminary executor to rely upon a statute of limitations defense in the event that a new action had to be commenced.

Accordingly, the branch of the plaintiffs' cross motion seeking an extension of time to serve the complaint on the personal representative of the estate in the interest of justice is [*4]granted. Such service shall occur within 120 days of the order to be entered hereon. In view of this determination, the preliminary executor's motion to dismiss is denied, as academic.

The Chief Clerk is directed to mail a copy of this decision to counsel for all parties.

Settle order.

SURROGATE