"Terminated with extreme prejudice" was a euphamism in the older spy novels.  In this legal malpractice case, witholding service until after the death of a defendant-attorney results in dismissal and termination of the case.

Postawa v David ;  2011 NY Slip Op 50902(U) ;  Decided on May 20, 2011 ;  Supreme Court, Queens County  is the story of immigation legal malpractice.  "The plaintiff Krzysztof Postawa ("Postawa") contends that he was a client of suspended attorney Earl Seth David ("David"). David was suspended from the practice of law by the States of New York (3 AD3d 174 [1st Dept. 2004] [suspension of 15 months, citing numerous extenuating circumstances]) and New Jersey (181 NJ 326, 857 A2d 648 [2004] [reciprocal discipline of 15-month suspension], and later reinstatement, 186 NJ 459, 896 A2d 472 [2006]). A review of the List of Disciplined Practitioners of the United States Department of Justice’s Executive Office for Immigration Review further reflects that David was suspended from the practice of immigration cases for a period of 15 months effective July 9, 2004. [*2]

Plaintiff Postawa claims that David mishandled his case. Making matters worse, Postawa contends that his alleged representation by David occurred during the period of his suspension from the practice of law. Postawa contends that David accomplished his representation through the aid and subterfuge of Ava Norris , a non-lawyer who died on July 4, 2010, and her company, TANC, Inc., doing business as The Ava Norris Company. Postawa complains that he paid over $30,000 to Ava Norris, and thus presumably to David, for an immigration problem that David mismanaged. The handwritten agreement between Postawa and TANC, Inc., agreeing to help Postawa obtain a green card is dated September 13, 2004. David is not mentioned in the agreement between Postawa and TANC, Inc. David, on these motions, contends that he had never heard of Postawa until he got a telephone call from Postawa’s attorney, Darius A. Marzec, Esq., on December 22, 2010, informing him that an emergency order to show cause would be brought the next day.

In the agreement that Postawa made with defendant TANC, Inc., on September 13, 2004, the name of the lawyer who is to supply the legal services to obtain the green card is not mentioned. David’s name is not mentioned in the writing, and it was not signed by him. Ava Norris will not be able to shed any light on this case, since she died on July 4, 2010, two months before Marzec filed his complaint on behalf of Postawa.

With this factual backdrop, even if one were to accept Postawa’s allegations that he had been defrauded, there is no documentary evidence that implicates David. David swears that, under an order of suspension from the practice of law from April 2004, he could not have represented Postawa in September 2010. David’s name is not mentioned any where in the contract. David swears that he never represented Postawa, did not meet him, and had not heard of him until the motion practice in this case.

Even assuming arguendo that David did meet with Postawa and represented him – – and David vigorously denies the charges – – the expiration of the statute of limitations and the merit or lack of merit to the complaint are to be considered relevant factors in determining whether this Court should exercise its discretion, under CPLR 306-b, to give the plaintiff another 120 days to serve the complaint. The leading case on whether to grant or deny a motion to extend the time to serve under CPLR 306-b is Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]. The Court of Appeals stated that reasonable diligence in attempting service is not the "gatekeeper" in deciding such motions. Id. at 104. Courts, instead, in exercising their discretion, are required to weigh and balance an amalgam of factors including the diligence of past attempts to serve, the expiration of the statute of limitations, the length of delay in service, the promptness of plaintiff’s request for an extension of time to serve, and prejudice to a defendant. Id. at 101, 105-106 & n.3.

First, as to the diligence of prior attempts to serve the defendants, Marzec, Postawa’s atttorney, keeps on referring to his efforts to find and serve David as being "duly diligent." This Court does not find that to be the case. Marzec asked a lawyers’ service to serve a copy of the order to show cause on an address in New Jersey. As Gorman points out, the owner of a private mail facility in New Jersey that David uses was authorized to accept service of process. Marzec knew about that private facility, but simply did not have David served with process there. Alex Molman ("Molman") submitted an affidavit that he is the owner of Postmark Plus, 1070H Route 34, South Matawan, New Jersey 07747. Molman and his assistant, Michael Ferrador, were both competent and authorized to accept service of process for David. They were not so served. [*6]

Other than that attempt, Marzec tried to find an address for David on the internet, but was unsuccessful. Those efforts by Marzec are paltry and not "duly diligent."See, Forte v Lutheran Augustana Extended Care and Rehabilitation, 2009 WL 4722325 [EDNY 2009] [party did not show diligence in attempting service thus warranting denial of motion to extend time to serve]; Braxton v McMillan, 76 AD3d 607 [2nd Dept. 2010][failure to show due diligence required denial of motion to extend time to serve]; accord, Krisilas v. Mount Sinai Hospital, 63 AD3d 887 [2nd Dept. 2009]; McSorley v Spear, 50 AD3d 652 [2nd Dept. 2008]; Estate of Waterman, 46 AD3d 63 [2nd Dept. 2007]. "