Move Quickly or Lose the Advantage in Legal Malpractice
Plaintiff sues several attorneys, and waits until nearly the end of the 120 day period to serve the summons and complaint. Service is not complete (mailing was later) and each of the defendants has a viable CPLR 306-b defense. One defendant moved within 60 days to dismiss and one did not. That 60 day time period under CPLR 3211(e) is vastly important. As we see in Qing Dong v. Chen Mao Kao 2014 NY Slip Op 01735 Decided on March 19, 2014 Appellate Division, Second Department
"Contrary to the plaintiff's contention, service of the summons and complaint upon Chen Mao Kao and Dickman was not made within 120 days of the commencement of the action as required by CPLR 306-b. Although the summons and complaint were delivered to persons of suitable age and discretion at the actual places of business of those defendants on November 4, 2011, one day before the expiration of the 120-day period, service was not completed within that time frame because the second act required by CPLR 308(2), the mailing, was not performed within the 120-day period (see Furey v Milgrom, 44 AD2d 91, 92-93; see also Siegel, NY Prac § 72 at 120 [5th ed 2011]). Also contrary to the plaintiff's contention, considering all of the circumstances of this case, the Supreme Court providently exercised its discretion in denying her cross motion to extend the time to serve the summons and complaint upon Chen Mao Kao and Dickman, nunc pro tunc, in the interest of justice (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106; Khodeeva v Chi Chung Yip, 84 AD3d 1030, 1030-1031; Calloway v Wells, 79 AD3d 786, 786-787). Accordingly, the Supreme Court properly granted Dickman's motion, and properly denied the plaintiff's cross motion.
The Supreme Court also properly denied that branch of Chen Mao Kao's cross motion which was pursuant to CPLR 306-b to dismiss the complaint insofar as asserted against him. Chen Mao Kao waived his objection that he was not timely served with the summons and complaint by failing to move for judgment on that ground within 60 days after serving his answer (see CPLR 3211[e])."