To avoid dismissal for failing to timely serve a complaint after a
demand has been made pursuant to CPLR 3012(b), and to be entitled to an
extension of time to serve the complaint under 3012(d), a plaintiff must demonstrate both a reasonable excuse for the delay and a
potentially meritorious cause of action.
Here, the plaintiffs failed to demonstrate either that they had a
reasonable excuse for the delay in serving their complaint, or that their
causes of action were meritorious. Plaintiff's counsel did not offer a reasonable excuse by saying that an unidentified staff member "apparently" filed the complaint without showing it to counsel. Neither is it a reasonable excuse that the letter memorializing the parties' attorneys' telephone conversation was sent to plaintiffs' counsel's former address, since the attorney never advised the Supreme
Court or the defendant of his new address, and there is no requirement
that a good faith letter be sent prior to moving to dismiss an action
for failure to timely serve.
Plaintiffs did submit an affidavit of merit or
other evidence demonstrating that their action was meritorious. The
proposed complaint verified by their attorney, who did not have personal
knowledge of the facts, was insufficient to demonstrate that the
action was potentially meritorious. The uncertified police accident report constituted inadmissible hearsay, and did not contain any
admission by the defendant against her interest bearing on how the
accident occurred.
Case: Ganchrow v. Kremer, NY Slip Op 00277 (2d Dep't January 17, 2018)
Here is the decision.
