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CPLR 306-b: Service Within 120 Days



**The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.**



CPLR 306-b. 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:

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 action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months 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.


Case Law:


Leader v. Maroney, Ponzini, 761 NE 2d 1018 - NY: Court of Appeals 2001

“In interpreting a statute, the starting point in any analysis must be the plain meaning of the statutory language (see, Rosner v. Metropolitan Prop. Liab. Ins. Co., 96 N.Y.2d 475, 479; Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583). We have recognized that meaning and effect should be given to every word of a statute. "Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning" (Cohen v. Lord, Day Lord, 75 N.Y.2d 95, 100; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 231).”

“Applying these fundamental principles of statutory construction here, it is clear that with the amendment to CPLR 306-b, the Legislature gave the courts two separate standards by which to measure an application for an extension of time to serve. The two are stated separately, joined by the word "or" (CPLR 306-b). They cannot be defined by use of the same criteria; otherwise, one would have been sufficient. "The view that diligence is an across-the-board requirement merges the two separate grounds for extension because an exercise of reasonable diligence in attempting service would surely count as good cause" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 306-b,

at 483; see also, Siegel, New York Practice § 63, at 86-87 [3d ed][a court may allow extension even when no good cause shown]).”


Chandler v. Osadln, Inc., 181 AD 3d 897 - NY: Appellate Div., 2nd Dept. 2020

“When deciding whether to grant an extension of time to serve a summons and complaint in the interest of justice, "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 [potentially] 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" ( Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d at 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ; see Thompson v. City of New York , 89 A.D.3d 1011, 1012, 933 N.Y.S.2d 701 ; Bumpus v. New York City Tr. Auth. , 66 A.D.3d at 31–32, 883 N.Y.S.2d 99 ).”


Oberlander v. Moore, 191 AD 3d 1009 - NY: Appellate Div., 2nd Dept. 2021

“CPLR 306-b requires that service of the summons and complaint or summons with notice "shall be made within one hundred twenty days after the commencement of the action or proceeding." The summons with notice was delivered to a person of suitable age and discretion at Moore's actual place of business on Monday, March 27, 2018, the final day within the statutory period (see General Construction Law § 25-a). However, the second act required by CPLR 308(2), the mailing, was not performed within the 120-day period. Contrary to the plaintiffs' contention, "both the delivery and mailing components of CPLR 308(2) must be performed within 120 days of the filing of process" (Purzak v Long Is. Hous. Servs., Inc., 149 AD3d 989, 992 [2017]).”






**The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only.**




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