A & J Concrete Corp. v. Arker

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

We cannot say, as a matter of law; that Supréme Court abused its discretion by granting plaintiffs’ motion, made pursuant to CPLR 2004, for an extension of time within which to serve their complaint. It is within the court’s power to grant such an extension where it is established, as it was in this case, that the delay in service was not willful or lengthy and that it did not cause any prejudice, to the parties. (See Hickland v Hickland, 56 AD2d 978.)

We would note that the courts enjoy a somewhat broader range of discretion when considering a motion for an extension of time under CPLR 2004 which precedes any motion to dismiss than when considering a motion to dismiss pursuant to CPLR 3012 (subd [b]), whether or not countered by a motion for extension of time. (Cf. Barasch v Micucci, 49 NY2d 594.)

Nor can we say that it was error for the Appellate Division to accept the verified complaint in this case in lieu of an affidavit of merit. (See CPLR 105, subd [s].) Once the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof.