Celebrating 10 years! 2007-2017

Time for service expired CPLR

What do you do? Start a second action naming just those defe legalbeagle04/13/17
Withdraw it and re file it if no SOL problem. Maybe ask physicssezno04/13/17
yea no SOL problem...but how do i go about withdrawing? make legalbeagle04/17/17
CPLR 3217 governs voluntary discontinuance fartacus04/18/17
we've also already started discovery and i guess noone reali legalbeagle04/19/17
Which County? notiers04/17/17
kings legalbeagle04/18/17
Your jurisdiction doesn't have a rule for reinstating an exp pauperesq04/18/17
With No SOL problem (and assuming some defendants have alrea notiers04/18/17
Agree with Notiers, see https://www.leagle.com/decision/ fartacus04/18/17
we would go that route, except there is no good cause and ti legalbeagle04/19/17
legalbeagle (Apr 13, 2017 - 10:35 am)

What do you do? Start a second action naming just those defendants that you failed to serve on time and consolidate later? I feel like there's a better way...btw the time to serve expired months ago...so i doubt moving for an extension would work.

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physicssezno (Apr 13, 2017 - 5:38 pm)

Withdraw it and re file it if no SOL problem.

Maybe ask defense to stipulate not to contest service of process but idk if this is one of those things defense can really consent to since it might be a court rule. Check rules if you go that route rather than just withdrawing, re filing and serving properly.

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legalbeagle (Apr 17, 2017 - 8:13 pm)

yea no SOL problem...but how do i go about withdrawing? make a motion?

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fartacus (Apr 18, 2017 - 4:20 pm)

CPLR 3217 governs voluntary discontinuance

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legalbeagle (Apr 19, 2017 - 10:02 am)

we've also already started discovery and i guess noone realized we hadn't served one of the defendants at all. don't think we'd want to discontinue an action where we had all that discovery. i think we're just going to start a 2nd action and consolidate.

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notiers (Apr 17, 2017 - 9:06 pm)

Which County?

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legalbeagle (Apr 18, 2017 - 4:31 pm)

kings

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pauperesq (Apr 18, 2017 - 4:47 pm)

Your jurisdiction doesn't have a rule for reinstating an expired complaint? In my state it's as simple as filing a request with the department of court records.

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notiers (Apr 18, 2017 - 5:25 pm)

With No SOL problem (and assuming some defendants have already been served - I would just move to extend the time to accomplish service by OSC. It will get granted.

If you haven't served any of the defendants yet and there is no SOL problem, just file a new action.

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fartacus (Apr 18, 2017 - 6:03 pm)

Agree with Notiers,

see https://www.leagle.com/decision/In%20NYCO%2020120117319/HENNEBERRY%20v.%20BORSTEIN

for a good discussion of grounds to extend time to serve - for good cause shown or in the interest of justice

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legalbeagle (Apr 19, 2017 - 10:00 am)

we would go that route, except there is no good cause and time to serve expired last year. somehow the file was floating somewhere in the office and well, someone screwed up.

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