Kielly v. Miller et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SARA KIELLY,
Plaintiff,
v. 	9:23-cv-00717 (AMN/PJE)
S. MILLER and ROBERT E. RUGAR, in
their individual capacities,
Defendants.
APPEARANCES: 	OF COUNSEL:
THE DRATCH LAW FIRM, P.C. 	BRIAN M. DRATCH, ESQ.
233 Broadway, Suite 1800
New York, New York 10279
Attorneys for Plaintiff
HON. LETITIA JAMES 	BRIAN W. MATULA, ESQ.
New York State Attorney General 	Assistant Attorney General
Litigation Bureau
The Capitol
Albany, New York 12224
Attorneys for Defendant
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION & ORDER
I. 	INTRODUCTION
On June 14, 2023, Plaintiff Sara Kielly commenced this action pursuant 42 U.S.C. § 1983
(“Section 1983”) against Defendants S. Miller and Robert E. Rugar1 related to an incident that she
alleges took place on November 5, 2020, while Plaintiff was confined at Great Meadow
1 The Court notes that Plaintiff’s filings misspell Defendant Robert E. Rugar’s last name as
“Ruger.” The Court employs the correct spelling throughout this opinion. The Clerk of the Court
is directed to correct the spelling of Defendant’s name on the case docket.
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Correctional Facility. See Dkt. No. 1 (“Complaint”). On April 4, 2025, Defendant Rugar moved
to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient service of process.
See Dkt. No. 18 (“Motion”). On April 23, 2025, Plaintiff opposed the Motion and simultaneously
cross-moved for service by alternative means. See Dkt. No. 22 (“Cross-Motion”).2 On May 2,
2025, Defendant filed a reply in support of the Motion and opposed the Cross-Motion. See Dkt.
No. 23 (“Reply”).
For the reasons set forth below, Defendant’s Motion is denied.
II. 	BACKGROUND
Unless otherwise noted, the following facts are drawn from the Complaint, its attachments,
or materials it incorporates by reference, and are assumed to be true for purposes of ruling on the
Motion, see Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of
Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam), or are otherwise matters of public record. See
Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020).
A. Procedural History
Plaintiff commenced this action on June 14, 2023. 	Dkt. No. 1. 	On July 21, 2023, this
Court conducted an initial review of the Complaint pursuant to 28 U.S.C. § 1915(e) and
recommended that Plaintiff’s Eighth Amendment claims against Defendants survive initial review.
2 While Plaintiff styles her Cross-Motion as a motion for substituted service, the method of service
Plaintiff proposes is not substituted service as defined by CPLR § 308(2), which does not require
leave of court. 	See Templos v. Luna Cuisine, Inc., 738 F. Supp. 3d 325, 331 (E.D.N.Y. 2024)
(noting that “substitute service may be accomplished by (1) delivering the summons to ‘a person
of suitable age and discretion’ at the person’s ‘actual place of business’ and (2) within twenty days
thereafter, mailing the summons to the person’s ‘actual place of business’”) (quoting CPLR §
308(2)). Accordingly, the Court construes the Cross-Motion as a request for alternative service
pursuant to Rule 4(e) of the Federal Rules of Civil Procedure and CPLR § 308(5).
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See Dkt. No. 6 at 8 (“Report-Recommendation”).3 The Court also denied Plaintiff’s motion for
service as incomplete, with leave to renew in light of Plaintiff’s pro se status. Id. The Court also
informed Plaintiff of the requirements for effectuating service of the Summonses and Complaint
by U.S. Marshal pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure. See id. In the
event Plaintiff did not renew her request for service within twenty days, the Court stated that it
would direct the Clerk to issue the Summonses and forward them to Plaintiff, who is responsible
for effecting service on Defendants. Id. at 9. Plaintiff did not renew her motion for service, and
on September 29, 2023, the Clerk issued the Summonses and copies of the Complaint to Plaintiff.
Dkt. No. 7.
On October 12, 2023, counsel appeared on Plaintiff’s behalf. Dkt. No. 9. According to
Plaintiff’s counsel, on December 15, 2023, Plaintiff’s process server attempted service on
Defendants at the W.A. Harriman State Office Campus, Bldg. 4, in Albany, New York (“Harriman
Campus”). 	See Dkt. No. 22-2 at 2-3. 	On January 18, 2024, Plaintiff’s counsel requested a
conference with this Court to discuss service, during which Plaintiff’s counsel indicated that the
process server was unable to serve Defendants at the Harriman Campus, and additionally was
unable to serve them at Bedford Hills Correctional Facility. 	See Dkt. No. 10. 	On February 5,
2024, Plaintiff’s counsel renewed Plaintiff’s motion requesting service of process by the U.S.
Marshal, which this Court granted. Dkt. No. 12. The Clerk reissued Summonses on February 6,
2024. 	Dkt. No. 14. 	Over one year later, on March 19 and April 9, 2025, Plaintiff’s counsel
appeared before Magistrate Judge Evangelista and indicated that, while Plaintiff had attempted to
locate Defendants through the submission of Freedom of Information Law (“FOIL”) requests,
3 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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Plaintiff had made no further attempts to serve Defendants. See Dkt. Nos. 16, 17, 21.
B. The Motion and Cross-Motion
On April 4, 2025, Defendant Rugar moved to dismiss the Complaint for insufficient service
of process. Dkt. No. 18. Specifically, Defendant argues that Plaintiff cannot establish good cause
to excuse noncompliance with the service requirements pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure, and the Court should decline to exercise its discretion to allow Plaintiff
additional time to effectuate service. 	See generally id. Plaintiff opposes the Motion and cross-
moves for service by alternative means. Dkt. No. 22. Specifically, Plaintiff contends that she has
shown good cause to excuse noncompliance because Plaintiff made various attempts to serve
Defendants and sought to ascertain Defendants’ identities and whereabouts by submitting FOIL
requests to the Department of Corrections and Community Supervision (“DOCCS”) and by
utilizing a private investigator. See Dkt. No. 22-9 at 4-5. In her Cross-Motion, Plaintiff does not
propose any alternative methods to effect service on either Defendant. 	See generally id. Plaintiff
only argues that she is entitled to service by alternative means because service by other applicable
methods is impracticable. See id. at 5. On May 2, 2025, Defendant Rugar replied to Plaintiff’s
opposition to the Motion and opposed the Cross-Motion. Dkt. No. 23.
On July 30, 2025, Plaintiff subsequently filed a second motion for service by alternative
means. See Dkt. Nos. 24, 25 (“Second Motion”).4 Plaintiff’s Second Motion advances the same
arguments as those advanced in her Cross-Motion, except that Plaintiff now seeks alternative
service only on Defendant S. Miller by certified mail at Great Meadow Correctional Facility and
at DOCCS offices at the Harriman Campus in Albany, New York. Dkt. Nos. 24-2 ¶ 12, 25-2 ¶ 12.
4 Dkt. No. 25 appears to be a duplicate of Dkt. No. 24. Both motions, filed on July 30, 2025, attach
the same exhibits and seek identical relief. See Dkt. Nos. 24, 25.
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Indeed, Plaintiff’s memorandum of law in support of her Second Motion is identical to the
memorandum filed in opposition to Defendant’s Motion and in support of her Cross-Motion. See
Dkt. Nos. 24 at 6 and 25-1 at 6 (both memorandums signed and dated on April 23, 2025).
Plaintiff’s exhibits in support of her Second Motion are also the same, except that Plaintiff now
includes documents received from DOCCS in response to her FOIL request, specifically, what
appears to be the investigative report prepared by DOCCS related to the alleged incident that took
place on November 5, 2020. See Dkt. Nos. 24-10, 25-10. On August 21, 2025, Defendant Rugar
responded to Plaintiff’s Second Motion. Dkt. No. 26. In his response, Defendant notes that Great
Meadow Correctional Facility closed in November 2024 and is no longer in operation. Id. at 1.
Moreover, based on a review of public records, Defendant S. Miller, who Defendant believes to
be “Scott Andrew Miller,” is no longer employed at DOCCS. See id at 1-2. For completeness,
the Court will consider the arguments advanced in Plaintiff’s Second Motion as part of its
assessment of Plaintiff’s Cross-Motion.
III. 	STANDARD OF REVIEW
A. Motion to Dismiss Pursuant to Rule 12(b)(5)
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a pleading for insufficient service of process. 	DiFillippo v. Special Metals Corp., 299
F.R.D. 348, 353 (N.D.N.Y. 2014). “On a Rule 12(b)(5) motion to dismiss, the plaintiff bears the
burden of establishing that service was sufficient.” Khan v. Khan, 360 Fed. Appx. 202, 203 (2d
Cir. 2010) (citing Burda Media, Inc. v. Viertel, 417 F.3d 292, 298 (2d Cir. 2005)). To determine
whether service of process was sufficient, courts look to materials outside the pleadings “to
determine what steps, if any, the plaintiff took to effect service.” Flemming v. Moulton, No. 13-
cv-1324, 2015 WL 5147035, at *4 (N.D.N.Y. Sept. 1, 2015) (citations omitted). 	If the Court
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determines that service was insufficient, the court may dismiss the action, or in the alternative,
grant leave to allow the plaintiff to cure the insufficiency. See Muhammad v. Price Chopper Corp.,
No. 24-cv-291, 2025 WL 460836, at *2 (N.D.N.Y. Feb. 11, 2025) (citation omitted).
Rule 4(e) of the Federal Rules of Civil Procedure governs the permissible methods of
service on individual defendants. See Flemming, 2015 WL 5147035, at *5. “Under Rule 4(e), a
summons can be served on an individual within the United States 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; 3) delivering a copy of each to an agent authorized by appointment or by law to
receive service of process; or 4) can be served pursuant to the law of the state where service is
made.” 	Id. (citing Fed. R. Civ. P. 4(e)(l-2)). 	The purpose of this requirement is “to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
If a defendant is not served within 120 days after the filing of the complaint, courts “must
extend the time to serve if the plaintiff has shown good cause” pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure. Harper v. NYC Admin. for Children’s Servs., No. 09-cv-2468, 2010 WL
23328, at *2 (S.D.N.Y. Jan. 5, 2010); see also Fed. R. Civ. P. 4(m) Advisory Committee’s Note
(1993 Amendments). “Good cause to excuse a failure to effect service exists only in exceptional
circumstances where the plaintiff’s failure to serve process in a timely manner was the result of
circumstances beyond its control.” Kogan v. Facebook, Inc., 334 F.R.D. 393, 401 (S.D.N.Y. 2020)
(internal quotation marks and citations omitted). “In determining whether a plaintiff has shown
good cause, courts weigh the plaintiff’s reasonable efforts and diligence against the prejudice to
the defendant resulting from the delay.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 66
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(S.D.N.Y. 2010) (citations omitted). Good cause for the failure to effect service in 120 days is not
satisfied by a showing of “some unanticipated difficulty.” Kogan, 334 F.R.D. at 401-02 (citation
omitted).
Absent a showing of good cause, the court may nevertheless exercise its discretion to
extend the time to serve under Rule 4(m). Harper, 2010 WL 23328, at *2. In the absence of good
cause, courts consider four factors to determine whether to grant a discretionary extension: (1)
whether “the statute of limitations would bar the refiled action”; (2) whether “defendants had actual
notice of the claims in the complaint”; (3) whether “defendants attempted to conceal the defect in
service”; and (4) whether “defendants would be prejudiced by an extension of the deadline.”
Muhammad, 2025 WL 460836, at *4 (citation omitted).
B. Service by Alternative Means
“Rule 4(e) of the Federal Rules of Civil Procedure provides for service of process on an
individual in the United States according to the laws of the state where the district court is located.”
Sirius XM Radio Inc. v. Aura Multimedia Corp., 339 F.R.D. 592, 593 (S.D.N.Y. 2021) (citing Fed.
R. Civ. P. 4(e)). “In New York, service of process may be effected by: (1) personal service; (2)
delivery to ‘a person of suitable age and discretion at the actual place of business, dwelling place
or usual place of abode of the person to be served’ and by either mailing the summons to the person
to be served at his or her last known residence; (3) service on an agent; or (4) so-called ‘nail and
mail’ service.” Ferrarese v. Shaw, 164 F. Supp. 3d 361, 365 (E.D.N.Y. 2016) (quoting CPLR §§
308(1)-(4)). New York courts construe “actual place of business” to include “(1) a place where
the defendant regularly transacts business, or (2) an establishment that the defendant owns or
operates, where there is a clear identification of the work performed by her within that place of
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business.” Archa v. New York, No. 24-cv-677, 2025 WL 2371018, at *4 (N.D.N.Y. Aug. 14, 2025)
(internal quotation marks and citation omitted).
“When service according to these traditional methods is ‘impracticable,’ service may be
made ‘in such manner as the court, upon motion without notice, directs.’” Windward Bora LLC
v. Edinboro, 719 F. Supp. 3d 238, 241 (E.D.N.Y. 2024) (quoting CPLR § 308(5)); see also Belov
v. Ilustrato Pictures Int’l, Inc., No. 24-cv-9372, 2025 WL 2257361, at *3 (S.D.N.Y. Aug. 7, 2025)
(noting that a plaintiff seeking to serve by alternative means “generally must make some showing
that the other prescribed methods of service could not be made” (citation omitted)). If the plaintiff
shows that traditional service is impracticable, the Court must then ensure that the purported
method of alternative service complies with constitutional due process by being “reasonably
calculated, under [all] circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.” Green Mountain Elec. Supply, Inc. v.
Power Mfg., LLC, No. 24-cv-1060, 2024 WL 5053199, at *2 (N.D.N.Y. Dec. 9, 2024) (quoting
F.T.C. v. PCCare247 Inc., No. 12-cv-07189, 2013 WL 841037, at *4 (S.D.N.Y. Mar. 7, 2013)).
IV. 	DISCUSSION
Before a federal court can exercise personal jurisdiction over a defendant, valid service is
required. See Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). In this
District, service of process is governed by Local Rule 4.1(b), which provides, in relevant part, that
a plaintiff has 60 days from the filing of a complaint to effect service, and “[i]n no event shall
service of process be completed after” 90 days, which is the deadline imposed by the Federal Rules
of Civil Procedure. N.D.N.Y. L.R. 4.1(b); see Fed. R. Civ. P. 4(m).
Here, Plaintiff commenced this action on June 14, 2023, by filing a complaint. Dkt. No.
1. Thus, Plaintiff was required to complete service by August 14, 2023, in accordance with the
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local rules, and “in no event” after September 12, 2023. See N.D.N.Y. L.R. 4.1 (b). Plaintiff failed
to serve Defendants prior to the 90-day deadline. See generally Docket Sheet.
A. Good Cause for Failure to Serve
The plaintiff bears the burden of proof to establish good cause for not timely serving the
defendants. See Hamza v. Yandik, No. 19-cv-447, 2023 WL 5336812, at *3 (N.D.N.Y. Aug. 18,
2023), aff’d, 2025 WL 573708 (2d Cir. Feb. 21, 2025). In determining whether a plaintiff acted
diligently to effectuate service, courts consider whether the plaintiff sought leave for an extension
of time to complete service under Fed. R. Civ. P. 6(b). See id. In particular, courts have found
that a plaintiff’s failure to act after being notified that the U.S. Marshal was unsuccessful in
effectuating service “risks dismissal of [plaintiff’s] claims.” Dimperio v. Onondaga Cty., No. 13-
cv-1202, 2015 WL 5603507, at *12 (N.D.N.Y. Sept. 23, 2015); see also Meilleur v. Strong, 682
F.3d 56, 63 (2d Cir. 2012) (“If . . . it becomes apparent that the Marshals will not accomplish
[service] by the Rule 4(m) or court-ordered deadline, [plaintiff] must . . . request a further extension
of time” for the Marshals to effectuate service.).
Here, the Court provided ample time and opportunity for Plaintiff to identify, locate, and
serve Defendants. In July 2023, this Court instructed Plaintiff regarding the steps for effectuating
service by U.S. Marshal. See Dkt. No. 6 at 8-10. Plaintiff failed to renew her motion for service
at that time, so the Clerk issued Plaintiff copies of the Summonses and Complaint. Dkt. No. 7.
On December 15, 2023—over two months after Plaintiff’s counsel appeared in this case—
Plaintiff’s process server attempted to serve Defendants at the Harriman Campus in Albany. See
Dkt. No. 22-2 at 2-3. Plaintiff’s process server was advised that corrections officers must be served
at the facility where they work or at their residential address. See id. According to Plaintiff, the
process server then attempted to serve Defendants at Bedford Hills Correctional Facility. See Dkt.
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No. 22-3 at 2. Yet, neither of the Defendants were alleged to have ever worked at Bedford Hills
Correctional Facility, nor did the events alleged by Plaintiff take place at Bedford Hills
Correctional Facility. See generally Dkt. No. 1. In February 2024, with guidance from this Court,
Plaintiff renewed her motion requesting service of process by the U.S. Marshal. 	Dkt. No. 12.
Thereafter, service by the U.S. Marshal at Great Meadow Correctional Facility was unsuccessful.
Dkt. No. 22-6 at 2-3.
These actions are insufficient to establish that Plaintiff’s inability to effectuate service was
due to “exceptional circumstances” or that the delay was beyond Plaintiff’s control. Courts in this
Circuit have repeatedly held that “an attorney’s inadvertence, neglect, mistake, or misplaced
reliance does not constitute good cause.” Stuart v. Paulding, No. 12-cv-25, 2013 WL 1336602, at
*3 (N.D.N.Y. Mar. 28, 2013) (citations omitted); see also AIG Managed Mkt. Neutral Fund v.
Askin Cap. Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000) (collecting cases). According to
the record, Plaintiff alleged that Defendants were employed at Great Meadow Correctional Facility
approximately four years earlier—in October 2020, see Dkt. No. 1 at 2, yet Plaintiff’s counsel
appears to have made minimal effort to ascertain Defendants’ current workplaces or personal
residences. 	While Plaintiff did hire a private investigator to attempt to locate Defendants, the
extent of the investigator’s search was limited to “the area of Great Meadow Correctional Facility.”
See Dkt. Nos. 22-8 at 2, 22-9 at 5. Plaintiff provides no further detail regarding the extent of the
investigator’s search. Plaintiff’s FOIL request to DOCCS fares no better, as the request fails to
seek information pertaining to Defendants’ work locations, residential addresses, or current
employment status. See Dkt. No. 22-7 at 2 (seeking copies of all investigative reports related to a
sexual assault upon Plaintiff, a copy of Plaintiff’s “PREA” (also known as the Prison Rape
Elimination Act) complaint, and copies of any memoranda issued by Defendants regarding the
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November 5, 2020 incident). Moreover, Plaintiff had not sought leave to extend the time for the
U.S. Marshal to effectuate service at any point during the time this case has been pending, which
includes the more than two years that Plaintiff has had counsel.
Accordingly, based on the record, the Court finds that Plaintiff fails to demonstrate good
cause for her failure to serve Defendants in a timely manner.
B. Discretionary Extension
Notwithstanding Plaintiff’s failure to demonstrate good cause, the Court may nevertheless
exercise its discretion to extend the time for Plaintiff to effectuate service pursuant to Rule 4(m).
See Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) (noting that “a district court may
grant an extension in the absence of good cause, but it is not required to do so”); see also Fed. R.
Civ. P. 4(m) Advisory Committee’s Note (1993 Amendments) (stating that courts may “relieve a
plaintiff of the consequences of an application of [the rule] even if there is no good cause shown”).
When determining whether to grant a discretionary extension, courts typically consider whether
“(1) the statute of limitations would bar the refiled action; (2) defendants had actual notice of the
claims in the complaint; (3) defendants attempted to conceal the defect in service; and if (4)
defendants would be prejudiced by an extension of the deadline.” Muhammad, 2025 WL 460836,
at *4 (citation omitted). 	After having weighed these four factors, the Court, in its discretion,
extends the time for Plaintiff to effectuate service.
Regarding the first factor, the Second Circuit has left it to the district courts to “weigh the
prejudice to the defendant that arises from the necessity of defending an action after both the
original service period and the statute of limitations have passed before service.” Zapata, 502 F.3d
at 198. The Rule 4(m) Advisory Committee’s Notes “specifically mention that an extension might
be justified where [the] statute of limitations would bar the refiling of an action.” Id. Here, the
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three-year statute of limitations on Plaintiff’s Section 1983 claims, see id. at 194 n.3, expired on
February 3, 2024. See Frasca v. U.S., 921 F.2d 450, 453 (2d Cir. 1990) (noting that “the statute
of limitations for the underlying claim is tolled during th[e] [90-day] period”). “Th[is] fact alone
may constitute cause for a discretionary extension.” Reese v. Univ. of Rochester, No. 04-cv-6117,
2005 WL 1458632, at *2 (W.D.N.Y. June 20, 2005) (citation omitted). 	Accordingly, because
Plaintiff’s claims are time-barred, the first factor weighs heavily in favor of granting Plaintiff an
extension of time to serve Defendants. See Songhorian v. Lee, No. 11-cv-36, 2012 WL 6043283,
at *4 (S.D.N.Y. Dec. 3, 2012) (noting that “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” (citation omitted)).
As to the second factor, at least one of the named Defendants has actual notice of this
action, although it appears that counsel did not advise him of the suit until after the statute of
limitations had run. In support of his motion to dismiss, Defendant Rugar submitted a declaration
stating that he became aware of the lawsuit and was provided with a copy of the Complaint in
November 2024. See Dkt. No. 18-2 ¶¶ 3-4. Accordingly, the second factor weighs in slight favor
of Defendants.
Regarding the third factor, there is no indication that Defendants attempted to conceal any
defect in service. See Benites v. New York Dep’t of Corr. & Cmty. Supervision, No. 21-cv-6863,
2023 WL 1966181, at *5 (S.D.N.Y. Feb. 13, 2023) (finding that the defect in service was not the
result of any acts of concealment by the defendants). 	Thus, while the third factor weighs in
Defendants’ favor, “this factor alone is not sufficient to offset other factors weighing in Plaintiff’s
favor.” Harrison v. New York, 95 F. Supp. 3d 293, 320 (E.D.N.Y. 2015) (granting extension even
where federal defendants did not attempt to conceal defect in service) (citation omitted).
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Lastly, as to the fourth factor, while an extension of time for Plaintiff to complete service
may prejudice Defendants to the extent that Defendants would have to expend time and resources
to defend a lawsuit that was untimely served, Plaintiff will suffer substantial prejudice if she is
denied an extension of time to serve because her claims will be barred by the statute of limitations.
See Purzak v. Long Island Hous. Servs., Nos. 12-cv-1747, 12-cv-4010, 2013 WL 5202711, at *7
(E.D.N.Y. Sept. 13, 2013) (finding that the fourth factor weighed in plaintiff’s favor despite
defendants being “forced to defend this action even though the statute of limitations has expired”);
see also Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 599 (E.D.N.Y. 2013)
(“Although defendant will be burdened with the obligation to defend this lawsuit if the extension
is granted, that does not rise to the level of prejudice necessary to tip the balance of this factor in
defendant’s 	favor.”) 	(internal 	quotation 	marks, 	citation, 	and 	alterations 	omitted). 	While
Defendants may face some prejudice due to the passage of time since the alleged events took place,
Defendant does not argue that witnesses are unavailable or that the passage of time has affected
Defendants’ recollection of events. See Dkt. No. 18-1 at 13. For these reasons, the fourth factor
weighs in favor of Plaintiff.
The Court is mindful of the effect that dismissal will have on Plaintiff. 	Dismissing
Plaintiff’s Complaint without prejudice would effectively extinguish all of Plaintiff’s claims
against Defendants because any newly filed claims would be time-barred. Considering the balance
of equities and the general preference for adjudicating cases on the merits, see Cody v. Mello, 59
F.3d 13, 15 (2d Cir. 1995), the Court exercises its discretion to grant Plaintiff an extension to serve
the Summonses and Complaint on Defendants pursuant to Rule 4(m).5
5 In light of the Court’s determination to extend Plaintiff’s time to complete service, the Court need
not address Plaintiff’s cross-motion for alternative service. 	However, the Court notes that
Plaintiff’s proposed alternative method of service is unlikely to apprise Defendants of the
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* * *
For the foregoing reasons, the Court grants Plaintiff a final opportunity to effectuate proper
service. To promote efficiency and avoid further unnecessary delay, the Court directs Plaintiff to
serve the Summonses and Complaint upon Defendants and file proof of service within 30 days of
the date of this Memorandum-Decision and Order. 	If Plaintiff anticipates any difficulty
completing service within that time, Plaintiff shall immediately contact the Magistrate Judge
assigned to this case.
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Defendant’s motion to dismiss, Dkt. No. 18, is DENIED; and the Court
further
ORDERS that Plaintiff’s Cross-Motion and Second Motion for alternative service, Dkt.
Nos. 22, 24, and 25, are DENIED as moot; and the Court further
ORDERS that Plaintiff, within thirty days of this Memorandum-Decision and Order,
serve Defendants with the Summonses and Complaint and file proof of service with this
Court by filing an affidavit completed by the process server affirming that Defendants were
properly served; and the Court further
pendency of this action. Plaintiff requested that Defendant Miller be served via certified mail at
Great Meadow Correctional Facility and at DOCCS offices at the Harriman Campus in Albany,
New York. 	See Dkt. No. 24-2 ¶ 12. 	Great Meadow Correctional Facility closed in November
2024 and is no longer in operation. See Dkt. No. 26 at 1. Furthermore, both Defendants are no
longer DOCCS employees. See id. (noting that Defendant Miller appears to have left DOCCS in
2022 based on publicly available information); Dkt. No. 18-2 ¶ 1 (Defendant Rugar declaring that
he is a former employee of DOCCS). 	Accordingly, service by certified mail at either Great
Meadow Correctional Facility or the Harriman Campus in Albany is highly unlikely to reach either
Defendant.
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ORDERS that Plaintiff immediately contact the Magistrate Judge assigned to this case
should Plaintiff anticipate any difficulty completing service within this timeframe; and the Court
further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
Parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 22, 2025
Albany, New York
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