From the Decision
What the Court
ordered.
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Quick AnswerIn a Decision, Order and Judgment filed February 13, 2026, the Supreme Court of the State of New York, Kings County, dismissed a foreclosure action that an LLC had filed against Petroff Amshen's clients in November 2021. Justice Menachem M. Mirocznik held that the plaintiff failed to serve the defendants within the 120 days required by CPLR 306-b, then failed to meet the Court's own 30-day extension, and offered only a conclusory, undetailed and uncorroborated excuse. The Court denied the plaintiff's motion for more time and directed the County Clerk to cancel the notice of pendency filed against the home.
On November 16, 2021, an LLC filed this foreclosure to enforce a mortgage on our clients' home in Brooklyn. The same day it filed a notice of pendency, the public warning that puts a pending foreclosure on the property's record.
Then it did not serve them. New York gives a plaintiff 120 days to serve the summons and complaint under CPLR 306-b. That deadline passed on March 16, 2022. Our clients raised the problem at once: their answer, filed January 17, 2022, asserted lack of personal jurisdiction, the defense that applies when a defendant has not been properly served, and they moved to dismiss on March 17, 2022, within the 60 days CPLR 3211(e) allows.
On April 9, 2025 the Court gave the plaintiff 30 more days to complete service, running from service of the order with notice of entry. Our clients served notice of entry on April 11. By the plaintiff's own account, service was not completed until 14 days after that deadline. It did not ask for more time before the deadline ran out. That made two missed deadlines.
On June 2, 2025 we moved to dismiss again, this time because the plaintiff had failed to comply with the Court's own order. The plaintiff waited until September 16, 2025, more than three months, and then asked the Court for more time after the fact.
Our argument was the record. The plaintiff missed the 120-day deadline, then the Court's deadline, and only asked for more time after we moved to dismiss. Its explanation was one sentence: it had promptly forwarded the papers to a licensed process server and there was an unintentional delay. The Court pointed out that the plaintiff never said when it sent the papers, never explained what caused the delay, and offered no affidavit of merit.
Mere neglect is not a reasonable excuse.Decision, Order and Judgment, at 3, quoting Bank of America v. Murjani (2d Dep't 2021)
The plaintiff argued that dismissing over a two-week delay would be unjust and disproportionate. The Court looked at the whole record instead. It found the excuse conclusory, undetailed and uncorroborated, found the plaintiff extremely dilatory, noted it had not even attempted to show the merits of its claim, and held that the failure to timely serve for over four years was unacceptable. It also found no diligence at all: no affidavits of service filed before the time to serve expired, and no admissible evidence or testimony of diligence in serving the defendants.
New York gives a plaintiff 120 days to serve. The 120 days ran out on March 16, 2022. The Court found the case had gone without timely service for over four years.
The record, in order: what the law gives a plaintiff, what this plaintiff took, and what the Court held on each argument.
A lawsuit does not reach a defendant until the summons and complaint are properly served. CPLR 306-b gives the plaintiff 120 days to do it and tells the court what happens when it does not: on the defendant's motion, the action shall be dismissed as to that defendant, unless the plaintiff earns an extension. The burden to earn it is on the plaintiff.
To show good cause a plaintiff has to prove it tried, with reasonable diligence, to serve. The Court cited the Second Department's rule that a conclusory, undetailed and uncorroborated claim of law office failure is not a reasonable excuse, and that mere neglect never is. Here the plaintiff could not even say when it handed the papers to a process server. That is not law office failure, the Court held. It is simple neglect.
The plaintiff tried to shrink the case to a two-week slip. The interest of justice standard does not work that way. The court weighs diligence, the statute of limitations, the apparent merit of the claim, the length of the delay, how promptly the plaintiff asked for more time, and prejudice to the defendant. Here the record ran against the plaintiff: four years without timely delivery, notice of the problem since March 2022, a request for more time made only after a second motion to dismiss, and no affidavit of merit at all.
The notice of pendency had sat on our clients' property record since November 2021. CPLR 6514 lets the court cancel it once the action is dismissed. The Court directed the County Clerk to do so.
The people who bring foreclosures have deadlines, and the first one is serving the papers. When a plaintiff lets that slide and then cannot explain why, the case can end there, and the cloud on the title comes off with it. The defense has to be raised in the answer and pursued on time, or it is waived. Our clients raised it in January 2022 and kept pressing it for four years.
None of this is automatic. It is found by reading the court file, every filing, every date, every affidavit of service, and litigating what the file shows.
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