Purzak v. Long Island Housing, Inc. et al

Filing 26

ORDER denying 15 Motion to Dismiss for Failure to State a Claim: For the reasons set forth herein, the Court denies defendants' motion to dismiss the complaint. Plaintiff shall properly serve the complaint in 12-CV-1747 by September 30, 2013. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/13/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
Nos 12-cv-1747, 12-cv-4010 (JFB) (WDW)
_____________________

LISA PURZAK,
Plaintiff,
VERSUS

LONG ISLAND HOUSING SERVICES, INC., ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
September 13, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Lisa Purzak (“plaintiff” or
“Purzak”) brings this action against Long
Island Housing Services, Inc. (“LIHS”), as
well as employees Maria T. Degennaro,
Michelle Santantonio, Myrsa Bonet, Carrie
Roman, John Doe 1-12 and Jane Doe 1-12
(collectively, “defendants”)
alleging
violations of the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”), the
Rehabilitation Act, 29 U.S.C. § 794 et seq.
(“Rehabilitation Act”), 42 U.S.C. § 1985, as
well as numerous causes of action under
state law.1 Specifically, plaintiff alleges that
LIHS discriminated against her when it
subjected her to unequal terms of
employment due to her disability.
1

Plaintiff originally proceeded pro se. After
defendants filed their motion to dismiss, plaintiff
retained counsel. However, this Memorandum and
Order relates entirely to events that occurred while
plaintiff was not represented by an attorney.

Defendants now move to dismiss the
complaint pursuant to Federal Rule of Civil
Procedure 12(b)(5).2 For the reasons set
2

Defendants also move to dismiss the complaint
under Federal Rule of Civil Procedure (12)(b)(6),
arguing that plaintiff has failed to state a claim under
the ADA or the Rehabilitation Act because plaintiff’s
alleged impairment does not substantially limit major
life activity, and that plaintiff has failed to state a
claim under the ADA because LIHS is not subject to
the ADA. Defendants also argue that plaintiff’s
Section 1985 claim is barred by the intra-corporate
conspiracy doctrine and that all of plaintiff’s state
law claims should be dismissed. However, as the
Court noted during the January 14, 2013 pre-motion
conference, the Court must first decide whether
service upon defendants was proper, and, if it was
not, whether plaintiff should be given another
opportunity to serve the complaint or whether this
action should be dismissed. The Court informed
defendants that they may also include arguments
regarding substantive defects in the complaint in this
motion, but that the Court would not adjudicate the
Rule (12)(b)(6) issues at this time. Therefore, this
Memorandum and Order only addresses defendants’
arguments made pursuant to Rule 12(b)(5). As

forth below, defendants’ motion to dismiss
is denied.

Dismissal and Notice of Rights, at 1-2.) The
notice states that, if Purzak wishes to file a
lawsuit under federal law, such a suit must
be filed within 90 days of receipt of the
notice. (Id. at 2.)

I. BACKGROUND
A. Factual Background

On January 12, 2012, plaintiff
commenced an action against LIHS alleging
violations of state law in State Supreme
Court, Nassau County. (See Defs.’ Mem. at
2; Pl.’s Opp’n at 9.) According to an
affidavit filed in that action, plaintiff
believed that her process server had properly
effectuated service on an attorney at LIHS.
(Liotti Decl. Ex. 2, Aff. of Lisa Purzak, Apr.
2, 2012 (“Purzak Apr. 2 Aff.”) ¶¶ 6, 8.)
Plaintiff attached an affidavit of service to
that affidavit. (Id. at 18-19.) Plaintiff also emailed defendants’ counsel in this matter on
January 12, 2012 with a copy of the
complaint. (Liotti Decl. Ex. 7, at 1.) On May
21, 2012, the court dismissed plaintiff’s state
court action due to ineffective service of
process. (Decl. of Joseph J. Ortego (“Ortego
Decl.”) Ex. C, May 21, 2012 Order, at 1-2.)

Because the Court only addresses
defendants’ Rule 12(b)(5) motion, it is not
necessary to review the underlying
allegations contained within plaintiff’s
complaint. In short, plaintiff states that she
has a circadian rhythm disorder called
Advanced Sleep Phase Syndrome. (Compl.
¶ 13.)3 Plaintiff began working at LIHS in
March 2009. (Id. ¶ 39.) Plaintiff alleges that,
despite her employer’s knowledge that she
needed a flexible work schedule to
accommodate her disability, LIHS assigned
plaintiff more work than any other employee
and would not modify her schedule. (Id. ¶¶
48-62.) Plaintiff also claims that she was
subjected to harassment and other hostile
work conditions as a result of her disability.
(See, e.g., id. ¶ 77.) LIHS allegedly denied
plaintiff’s request to work from home after
she was placed on a continuous heart
monitor. (Id. ¶¶ 78-79.) Plaintiff was
terminated on August 6, 2010. (Id. ¶ 100.)

On April 9, 2012, before plaintiff’s state
court action was dismissed and 89 days after
plaintiff received her Right to Sue Notice,
plaintiff filed a complaint in this Court. The
case was assigned docket number 12-CV1747. On April 23, 2012, this Court warned
plaintiff that, if service was not made upon
defendants by August 7, 2012, or plaintiff
failed to show good cause as to why service
had not been effectuated, her action would
be dismissed without prejudice. (Order, 12CV-1747, Apr. 23, 2012, ECF No. 3.)
Plaintiff never filed an affidavit of service,
nor did she request an extension of time to
effectuate service. Although plaintiff has not
submitted evidence that she properly
effectuated service of the 12-CV-1747
complaint, plaintiff did e-mail the complaint
and a waiver of service form to defendants’
counsel on August 7, 2012. (Liotti Decl. Ex.
3.) However, on August 8, 2012,

On January 11, 2012, plaintiff received a
Right to Sue Notice from the U.S. Equal
Employment Opportunity Commission.
(Decl. of Thomas F. Liotti (“Liotti Decl.”)
Ex. 1, E-mail from New York District
Office of U.S. Equal Employment
Opportunity
Commission
attaching
discussed infra, the Court is granting plaintiff an
extension of time to effectuate service. If defendants
wish to move to dismiss under Rule 12(b)(6) on the
same grounds previously asserted, defendants may
submit a letter renewing their motion and the Court
will set a briefing schedule. Defendants may also file
a new motion.
3
Although plaintiff has filed two separate
complaints, one in 12-CV-1747 and one in 12-CV4010, as discussed infra, it appears that the two
complaints are identical.

2

In her opposition to defendants’ motion
to dismiss, plaintiff does not argue that any
exceptional circumstances prevented her
from properly serving the complaint in 12CV-1747. However, in an affidavit
submitted in state court, plaintiff states that
her husband sustained serious injuries from
a car accident on February 19, 2012 and that
her daughter is currently undergoing cancer
treatments. (Purzak Apr. 2 Aff. ¶ 2.)

defendants’ counsel informed plaintiff that it
was not authorized to accept service on
behalf of LIHS or the individual defendants.
(Liotti Decl. Ex. 5.) Defendants never
signed the waiver of service.
On August 10, 2012, two days after the
deadline to serve the 12-CV-1747 complaint
had passed, plaintiff filed an identical
complaint in this Court. The case was
assigned docket number 12-CV-4010. On
December 6, 2012, plaintiff served the
complaint on the New York Secretary of
State. (Liotti Decl. Ex. 10, at 1-7.) In
addition, on December 7, 2012, one day
before the deadline for serving the 12-CV4010 complaint, plaintiff’s process server
served the complaint on Erik Heins
(“Heins”), a staff attorney at LIHS. (Id. at
14.) In an affidavit in support of defendants’
motion to dismiss, Heins states that he is not
qualified to accept service of process on
behalf of LIHS because he does not serve as
legal counsel for LIHS; his sole role as an
attorney for LIHS is to initiate lawsuits
challenging housing discrimination. (Ortego
Decl. Ex. D, Aff. of Erik Heins, ¶¶ 2, 4, 11.)

B. Procedural History
As discussed supra, plaintiff filed the
complaint in 12-CV-1747 on April 9, 2012.
Plaintiff then filed an identical complaint
complaint in 12-CV-4010 on August 10,
2012. On February 15, 2013, defendants
filed a motion to dismiss. Plaintiff’s counsel
filed a notice of appearance on May 1, 2013,
and plaintiff filed her opposition on June 3,
2013. Defendants submitted a reply in
support of their motion on June 17, 2013.
The Court held oral argument on September
12, 2013. The Court has fully considered all
of the submissions of the parties.
II. STANDARD OF REVIEW

Plaintiff claims that LIHS failed to
update its address with the Secretary of
State, making service of process more
difficult. (See Pl.’s Opp’n at 13; see also
Liotti Decl. Ex. 9 (New York State
Department of State records listing Islandia,
New York address for LIHS, even though
plaintiff alleges that LIHS is located in
Bohemia, New York).) Defendants state that
“LIHS may have inadvertently (and by no
means willfully or intentionally) neglected
to update its address with the Secretary of
State . . . .” (Def.’s Reply at 2.) However,
plaintiff has not submitted any evidence
demonstrating that she attempted to serve
the 12-CV-1747 complaint on LIHS through
the Secretary of State, but that service could
not be effectuated due to the incorrect
address.

A. Motion to Dismiss for Insufficient
Service of Process
“Under Rule 12(b)(5), a party may file a
motion to dismiss due to insufficiency of
service of process.” Rzayeva v. United
States, 492 F. Supp. 2d 60, 74 (D. Conn.
2007). In reviewing a motion to dismiss
pursuant to Rule 12(b)(5), the Court “must
look to matters outside the complaint to
determine whether it has jurisdiction.”
Darden v. DaimlerChrysler N. Am. Holding
Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y.
2002).
“Conclusory
statements
are
insufficient to overcome a defendant’s
sworn affidavit that he was not served.” Id.
If there are factual disputes that cannot be
resolved through affidavits and other
3

state in which the court is located, or service
is effected,” in this case, New York.
Jackson, 339 F. Supp. 2d at 476. Service on
a corporation may be effectuated in the same
manner as service upon an individual, or “by
delivering a copy of the summons and of the
complaint to an officer, a managing or
general agent, or any other agent authorized
by appointment or by law to receive service
of process and – if the agent is one
authorized by statute and the statute so
requires – by also mailing a copy of each to
the defendant.” Fed. R. Civ. P. 4(h)(1)(B).
In New York, corporations may also be
served by effectuating service of process on
the Secretary of State. See N.Y. C.P.L.R.
§ 306(b).

submissions, an evidentiary hearing may be
necessary. See Falconer v. Gibsons Rest.
Grp., L.L.C., 10 C 1013, 2011 WL 43023, at
*2 (N.D. Ill. Jan. 6, 2011). “When a
defendant challenges service of process, the
burden of proof is on the plaintiff to show
the adequacy of service.” DeLuca v.
AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64
(S.D.N.Y. 2010) (citation and internal
quotation marks omitted).
III. DISCUSSION
Defendants argue that: (1) plaintiff failed
to serve the first complaint in 12-CV-1747;
(2) plaintiff’s service of the complaint in 12CV-4010 was improper; (3) plaintiff’s
failure to serve the first complaint in 12-CV1747 resulted in the expiration of the 90-day
statute of limitations for filing federal
claims, i.e., even if plaintiff properly served
the second complaint, the statute of
limitations had already expired; and (4) the
Court should not grant plaintiff an extension
of time to serve the complaint. For the
reasons set forth below, the Court grants
plaintiff an extension of time to serve the
complaint in 12-CV-1747.

Under Federal Rule of Civil Procedure
4(m), a complaint must be served within 120
days of filing. However, if a plaintiff “shows
good cause for the failure” to serve the
complaint within the specified time, the
court “must extend the time for service for
an appropriate period.” Id. (emphasis
added). In addition, “district courts have
discretion to grant extensions even in the
absence of good cause.” Zapata v. City of
N.Y., 502 F.3d 192, 196 (2d Cir. 2007); see
also Henderson v. United States, 517 U.S.
654, 662 (1996) (“[I]n [the] 1993
amendments to the Rules, courts have been
accorded discretion to enlarge the 120–day
period even if there is no good cause
shown.” (citation and internal quotation
marks omitted)); Morris v. Ford Motor Co.,
07-CV-424S, 2009 WL 2448473, at *3
(W.D.N.Y. Aug. 7, 2009) (“Even though an
extension of time to effect service is not
mandatory under Rule 4(m) in this case
because plaintiff has failed to show good
cause, the Court may, in its discretion, still
extend the deadline rather than dismiss the
case for improper service.” (citation and
internal quotation marks omitted)).

A. Service of Process
1. Applicable Law
Service on an individual may be
effectuated by: (1) “delivering a copy of the
summons and of the complaint to the
individual personally”; (2) leaving a copy of
each at the individual’s dwelling or usual
place of abode with someone of suitable age
and discretion who resides there”; or (3)
“delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.” Fed. R. Civ. P.
4(e)(2); see also Jackson v. Cnty. of
Nassau, 339 F. Supp. 2d 473, 476 (E.D.N.Y.
2004). “The Federal Rules also authorize
service of process pursuant to the law of the
4

in a determination of good cause.” Alvarado,
2005 WL 1467893, at *5. “A delay in
service resulting from mere inadvertence,
neglect, or mistake does not constitute good
cause.” Id. A plaintiff’s pro se status is not
grounds for an automatic extension of time
to serve the complaint. See G4 Concept
Mktg., Inc. v. MasterCard Int’l, 670 F. Supp.
2d 197, 199 (W.D.N.Y. 2009) (“[I]gnorance
of the law, even in the context of pro se
litigants, does not constitute good cause
under Rule 4(m) . . . .” (alterations, citations,
and internal quotation marks omitted));
Madden v. Town of New Haven, No. 07-CV111, 2008 WL 2483295, at *2 (D. Vt. June
17, 2008) (stating that “pro se status alone
does not constitute good cause”).

In Zapata, the Second Circuit held that
district courts have significant discretion in
determining whether an extension of time is
warranted. 502 F.3d at 197 (“[W]e owe
deference to the district court’s exercise of
discretion whether or not it based its ruling
on good cause.”); id. (“Where, as here, good
cause is lacking, but the dismissal without
prejudice in combination with the statute of
limitations would result in a dismissal with
prejudice, we will not find an abuse of
discretion in the procedure used by the
district court, so long as there are sufficient
indications on the record that the district
court weighed the impact that a dismissal or
extension would have on the parties.”
(footnote omitted)). In addition, the Second
Circuit stated that whether the district court
engages in a “bifurcated inquiry” “to first
evaluate good cause and then demonstrate
[its] awareness that an extension may be
granted even in the absence of good cause”
or whether the court simply weighs the
“overlapping equitable considerations”
relevant to both inquiries is “best left to the
district court.” Id.

Courts have typically weighed four
factors in determining whether to grant an
extension of time absent good cause: “(1)
whether the applicable statute of limitations
would bar the refiled action; (2) whether the
defendant had actual notice of the claims
asserted in the complaint; (3) whether the
defendant had attempted to conceal the
defect in service; and (4) whether the
defendant would be prejudiced by the
granting of plaintiff’s request for relief from
the provision.” Carroll v. Certified Moving
& Storage, Co., 04 CV 4446, 2005 WL
1711184, at *2 (E.D.N.Y. July 19, 2005)
(citation and internal quotation marks
omitted).
“Courts
have
consistently
considered the fact that the statute of
limitations has run on a plaintiff’s claim as a
factor favoring the plaintiff in a Rule 4(m)
analysis.” Id. (citation and internal quotation
marks omitted).

“A party seeking a good cause extension
bears a heavy burden of proof.” Alvarado v.
Am. Freightways, Inc., 04 CIV. 9536, 2005
WL 1467893, at *5 (S.D.N.Y. June 21,
2005). “Good cause is generally found only
in exceptional circumstances where the
plaintiff’s failure to serve process in a timely
manner was the result of circumstances
beyond its control.” E. Refractories Co. v.
Forty Eight Insulations, Inc., 187 F.R.D.
503, 505 (S.D.N.Y. 1999) (citation and
internal quotation marks omitted); see also
Madison v. BP Oil Co., 928 F. Supp. 1132,
1137 (S.D. Ala. 1996) (“[C]ourts have found
that factors outside a plaintiff’s control, such
as sudden illness, natural catastrophe or
evasion of service of process” satisfy the
good cause requirement.). In addition, “[t]he
diligence of the plaintiff’s efforts to effect
proper service is an important consideration

2. Analysis
Plaintiff has not met her burden of proof
in demonstrating that she properly served
defendants in 12-CV-1747. The only
evidence in the record regarding plaintiff’s
attempt to serve defendants was the August
5

No. 04-CV-2964, 2006 WL 2135800, at *3
(E.D.N.Y. July 31, 2006) (good cause found
when some evidence indicated that
counsel’s failure to serve complaint within
120 days was an oversight, but other
evidence indicated it was due to his mental
illness). The Court finds that the serious
medical issues of plaintiff’s husband and
daughter, combined with plaintiff’s attempt
to obtain a waiver of service, constitutes
good cause. Therefore, under Rule 4(m), the
Court is required to extend the time to
effectuate service.

7, 2013 e-mail to defendants’ counsel
attaching the complaint and a request for a
waiver of service. However, as discussed
supra, defendants did not waive service of
the complaint, nor did defendants’ counsel
accept the e-mail as service. In addition,
under both the Federal Rules and New
York’s CPLR, e-mail is not one of the
prescribed methods of service. In New York,
e-mail service has only been allowed when
service by conventional means is
“impracticable” and the court explicitly
authorizes “appropriate forms of alternate
service.” Snyder v. Alternate Energy Inc.,
857 N.Y.S.2d 442, 446-7 (N.Y. Cnty. Civil
Ct. 2008). Although this Court must
construe the Federal Rules “liberally” with
pro se litigants, Romandette v. Weetabix
Co., 807 F.2d 309, 311 (2d Cir. 1986), the
deference to plaintiff’s pro se status “does
not extend to satisfying service of process
requirements,” Peia v. U.S. Bankr. Courts,
No. 00-CV-2310, 2001 WL 789201, at *1
(D. Conn. May 22, 2001).

Even if plaintiff had not demonstrated
good cause, the Court believes, in its
discretion, that an extension of time to
effectuate service should be granted.
Reviewing the factors cited by Carroll and
numerous other courts, three of the four
factors weigh in favor of granting the
extension.
First, and most importantly, dismissal of
this action would bar plaintiff from re-filing
the complaint because the statute of
limitations has expired. Defendants argue
that this favors dismissal because they
would be prejudiced by an extension, but, in
fact, “[c]ourts have consistently considered
the fact that the statute of limitations has run
on a plaintiff’s claim as a factor favoring the
plaintiff in a Rule 4(m) analysis.” Carroll,
2005 WL 1711184, at *2 (citation and
internal quotation marks omitted); see also
Hollomon, 2006 WL 2135800, at *4 (“[A]s
[defendants] acknowledge, if the claims
were dismissed without prejudice as per
Rule 4(m), plaintiff would be barred from
refiling her Title VII claims. However,
[defendants] erroneously conclude that, for
this reason, the claims should be dismissed.
Instead, it is exactly because of this
procedural problem that discretionary
extensions are granted.”). “The rationale for
this principle is that dismissal under these
circumstances would extinguish potentially

However, plaintiff’s failure to timely
serve the complaint is excused due to health
issues in plaintiff’s family. In an affidavit
plaintiff submitted in state court, plaintiff
states that her husband sustained serious
injuries from a car accident on February 19,
2012 and that her daughter is currently
undergoing cancer treatments. (Purzak Apr.
2 Aff. ¶ 2.) In a letter requesting
adjournment of oral argument in this matter,
plaintiff’s counsel stated that plaintiff’s
daughter is still undergoing chemotherapy
and other procedures related to her cancer
diagnosis. (See Letter, July 19, 2013, ECF
No. 24.) Many other courts have found good
cause in analogous circumstances. See
Habib v. Gen. Motors Corp., 15 F.3d 72, 7475 (6th Cir. 1994) (reversing district court’s
determination of no good cause when pro se
plaintiff was paralyzed, had numerous other
medical complications, and attempted to
serve complaint); Hollomon v. City of N.Y.,
6

motion to dismiss that action for improper
service, they had notice of the underlying
claim. In addition, plaintiff e-mailed
defendants’ counsel a copy of this complaint
before the 120-day period to serve expired.
Thus, defendants were clearly aware of
plaintiff’s claims and, therefore, this factor
weighs in her favor. See Jordan v.
Forfeiture Support Assocs., No. 11-CV3001, 2013 WL 828496, at *10 (E.D.N.Y.
Mar. 5, 2013) (granting extension of time
where “it is undisputed that defendant
received plaintiff’s pleadings”); DeLuca,
695 F. Supp. 2d at 67 (granting extension of
time when there was no dispute that the
defective service gave defendant actual
notice of the lawsuit).

meritorious claims without there being an
opportunity to have them adjudicated on the
merits.” AIG Managed Mkt. Neutral Fund v.
Askin Capital Mgmt., L.P., 197 F.R.D. 104,
109-10 (S.D.N.Y. 2000); cf. Cody v. Melli,
59 F.3d 13, 15 (2d Cir. 1995) (“This Court
has expressed on numerous occasions its
preference that litigation disputes be
resolved on the merits, not by default.”).
Thus, this factor weighs strongly in favor of
plaintiff. See Morris, 2009 WL 2448473, at
*4 (holding that the running of the statute of
limitations, while not “dispositive,” “does
weigh in Plaintiff’s favor”); Beauvoir v. U.S.
Secret Serv., 234 F.R.D. 55, 58-59
(E.D.N.Y. 2006) (granting extension where
statute of limitations would bar refiled
action); Mejia v. Castle Hotel, Inc., 164
F.R.D. 343, 345-6 (S.D.N.Y. 1996) (same);
Advisory Committee Notes for 1993
Amendments to Fed. R. Civ. P. 4(m) (stating
that “[r]elief may be justified, for example,
if the applicable statute of limitations would
bar the refiled action”); see also Horenkamp
v. Van Winkle & Co., 402 F.3d 1129, 1133
(11th Cir 2005) (upholding extension of
time to serve complaint and stating that
“[a]lthough the running of the statute of
limitations does not require that a district
court extend the time for service of process
under the new rule, we agree with the
district court that the circumstances of this
case militate in favor of the exercise of the
district court’s discretion to do so” (internal
citation omitted)); Boley v. Kaymark, 123
F.3d 756, 759 (3d Cir. 1997) (“We conclude
that [] the running of the statute of
limitations is a factor supporting the
discretionary granting of an extension of
time to make service under Rule 4(m) . . .
.”).

The third factor, whether defendants
have attempted to conceal the absence of
service of process, is the only factor
weighing in defendants’ favor. However,
this alone is not sufficient to deny the
extension. See Jordan, 2013 WL 828496, at
*10 (granting extension even when
defendant did not attempt to conceal the
defect in service because “this factor alone
does not offset the numerous reasons that
support granting plaintiff additional time to
correct service of process”); Feingold v.
Hankin, 269 F. Supp. 2d 268, 277 (S.D.N.Y.
2003) (granting extension even when statute
of limitations did not bar refiling of action
and defendant had not tried to conceal
ineffective service).
The fourth factor weighs in plaintiff’s
favor. The only prejudice that defendants
proffer is that they will be forced to defend
this action even though the statute of
limitations has expired. However, as
discussed supra, “the obligation to defend
this lawsuit if the extension is granted []
does not rise to the level of prejudice
necessary to tip the balance of this factor in
defendant[s’] favor.” Jordan, 2013 WL
828496, at *10 (alterations, citation, and

Second, defendants had actual notice of
the claims asserted in the complaint.
Plaintiff originally filed a lawsuit related to
the same incident in state court, and
although defendants successfully filed a
7

internal quotation marks omitted); see also
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.
v. Barney Assocs., 130 F.R.D 291, 294
(S.D.N.Y. 1990) (stating that prejudice
“involves impairment of the defendant’s
ability to defend on the merits, rather than
merely foregoing such a procedural or
technical
advantage”).
Defendants’
argument is particularly unpersuasive in this
case because they have known about
plaintiff’s claims since before she even filed
this action in federal court, and, thus,
defendants should be prepared to defend this
lawsuit on the merits. See AIG Managed
Mkt., 197 F.R.D. at 111 (granting extension
and stating that defendant’s arguments of
prejudice were “weaken[ed]” when it knew
there might be potential claims against it and
defendant’s counsel attended some of the
depositions taken in connection with the
claims against the co-defendants); see also
Boley, 123 F.3d at 759 (“[A]ctual notice to a
defendant that an action was filed militates
against a finding of prejudice.”).

IV. CONCLUSION
For the foregoing reasons, the Court
denies defendants’ motion to dismiss the
complaint. Plaintiff shall properly serve the
complaint by September 30, 2013.
SO ORDERED

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: September 13, 2013
Central Islip, NY
***
Plaintiff is represented by Thomas F. Liotti,
Law Offices of Thomas F. Liotti, 600 Old
Country Road, Suite 530, Garden City, NY
11530. Defendants are represented by
Joseph John Ortego and Thomas M
Mealiffe, Nixon Peabody LLP, 50 Jericho
Quandrangle, Suite 300, Jericho, NY 11753
and Tracey B. Ehlers, Nixon Peabody LLP,
40 Fountain Plaza, Buffalo, NY 14202.

Therefore, after considering the four
relevant factors that courts in this Circuit
consider when determining whether to grant
a discretionary extension of time to serve,
the Court finds that these factors weigh
strongly in favor of an extension.4

4

Because the Court finds that an extension of time
should be given for plaintiff to properly serve the
complaint in 12-CV-1747, the Court does not need to
decide whether the complaint in 12-CV-4010 was
properly served and whether that complaint was filed
within the applicable statute of limitations. The Clerk
of the Court shall close 12-CV-4010. All future
filings on this case should be made in 12-CV-1747.

8