Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on January 14, 2025, for the reasons stated herein, and pursuant to CPLR §§ 306-b, 308(2), and 3211(a)(8), the Decision and Order on (1) Defendant Andrew Y. Yang, M.D.'s ("Yang") Motion to Dismiss the Complaint as Against Him for Lack of Personal Jurisdiction Based on Improper Service of Process on Him is DENIED as moot; and (2) Plaintiff's Cross-Motion Extending His Time to Serve Process on Defendant is GRANTED in part to the extent Plaintiff's time to serve the summons and complaint on Defendant is extended, in the interest of justice and in the Court's discretion, to one hundred-twenty (120) days after electronic service of this Decision and Order [*2]by Plaintiff's counsel, Michael N. David, Esq., on Defendant's counsel, Kevin R. Natale, Esq., at Law Offices of Benvenuto & Gaujean.

On March 31, 2024, Plaintiff Nathaniel Geebro ("Plaintiff") commenced this action to recover damages for medical malpractice and lack of informed consent against (among others) Defendant Andrew Young-Min Yang, M.D. (sued herein as Andrew Y. Yang, M.D.) ("Defendant").^[FN1] On Wednesday, July 24, 2024, Defendant was allegedly served with process, pursuant to CPLR § 308(2), by delivery of the summons and complaint to Defendant's wife, Lena Yang, as a person of suitable age and discretion to accept service on behalf of a "corporation or partnership" at Defendant's business address (the "Affidavit of Service").^[FN2] The Affidavit of Service, however, failed to state whether a copy of the summons and complaint was also mailed to Defendant's business address.

On August 23, 2024, Defendant interposed an answer, asserting as one of his affirmative defenses that he was not properly served with the summons and complaint.^[FN3] On October 22, 2024, Defendant served the instant motion to dismiss for lack of personal jurisdiction.^[FN4] Defendant contended, as the basis for dismissal, that service of process on him was improper and/or invalid for two reasons: first, because he is not a "corporation or partnership"; and, second and more fundamentally, because he did not receive a copy of the summons and complaint in the mail as required to complete service of process, pursuant to CPLR § 308(2).^[FN5] Contrary to his counsel's representation,^[FN6] however, Defendant's personal affirmation attesting to his denial of the receipt of the summons and complaint in the mail was not e-filed as an exhibit to his motion.

On January 6, 2025, Plaintiff cross-moved for (among other relief) an Order, pursuant to CPLR § 306-b, extending his time to serve process on Defendant.^[FN7] In support of his cross-motion, Plaintiff submitted his counsel's affirmation averring that his counsel personally mailed a copy of the summons and complaint to Defendant's business address on Friday, July 26, 2024, [*3]which was two days after service of the summons and complaint on his wife at his business address.^[FN8] Plaintiff's counsel, however, did not e-file with the Kings County Clerk his affirmation of service within twenty (20) days of his alleged mailing of process to Defendant's business address. As noted, the Court heard oral argument on Defendant's motion and Plaintiff's cross-motion on January 14, 2025, and reserved decision. In the interest of brevity, the Court addresses Plaintiff's cross-motion first.

"Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b)." Wells Fargo Bank, N.A. v Fameux, 201 AD3d 1012, 1013 (2d Dept. 2022). "Pursuant to CPLR [§] 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for 'good cause shown' or 'in the interest of justice.'" BAC Home Loans Servicing, L.P. v Tessler, 208 AD3d 619, 621 (2d Dept. 2022). "Good cause and interest of justice are two separate and independent statutory standards." Wells Fargo Bank, N.A., 201 AD3d at 1013. "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service." Id. at 1014. "[A]n attempt at service that later proves defective cannot be the basis for a 'good cause' extension of time to serve process pursuant to CPLR 306-b." Estate of Fernandez v Wyckoff Hgts. Med. Ctr., 162 AD3d 742, 743 (2d Dept. 2018).

"If good cause for an extension is not established, courts must consider the 'interest of justice' standard of CPLR 306-b." Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 (2d Dept. 2009). "The interest of justice standard is broader than the good cause standard, as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant." Id.

Under the circumstances of this case, Plaintiff failed to meet the "good cause" standard for an extension of time to serve Defendant. See U.S. Bank N.A. v Bindra, 217 AD3d 719, 720 (2d Dept. 2023); Estate of Fernandez, 162 AD3d at 743. The process server's Affidavit of Service was silent as to the mailing of the summons and complaint to Defendant's business address. Further, Plaintiff's counsel's affirmation attesting to his own mailing of the summons and complaint to Defendant's business address was not e-filed with the Kings County Clerk within twenty (20) days following the delivery of process to Defendant's wife at Defendant's business address.

Nonetheless, pursuant to CPLR § 306-b, Plaintiff met the "interest of justice" standard which justifies an extension of time to serve process. In that regard, Plaintiff established that: (1) he timely commenced this action;^[FN9] (2) "the statute of limitations had expired when...[he] cross-[*4]moved for relief" (Chan v Zoubarev, 157 AD3d 851, 852 [2d Dept. 2018]);^[FN10] (3) "service [was] timely made within the 120-day period but [was] subsequently found to have been defective" (Earle v Valente, 302 AD2d 353, 354 [2d Dept. 2003]);^[FN11] (4) "there was no prejudice to...[D]efendant attributable to the delay in service" (Chan, 157 AD3d at 852);^[FN12] and (5) Defendant failed to provide proof of his alleged non-receipt of the summons and complaint that had been mailed to him by Plaintiff's counsel. Whether this action is (or is not) meritorious is only "one factor to be considered by a court in determining a CPLR [§] 306-b motion." Estate of Fernandez, 162 AD3d at 744.

Accordingly, it is hereby ORDERED that Plaintiff's cross-motion (Mot. Seq. # 2) is granted to the extent that his time to serve the summons and complaint on Defendant is extended, in the interest of justice and in the Court's discretion, to one hundred-twenty (120) days after electronic service of this Decision/Order by Plaintiff's counsel, Michael N. David, Esq., on Defendant's counsel, Kevin R. Natale, Esq., at Law Offices of Benvenuto & Gaujean. The remainder of Plaintiff's cross-motion is denied as moot.

It is further ORDERED that Defendant's motion (Mot. Seq. # 1) to dismiss is denied as moot.

This constitutes the Decision and Order of the Court.