Andreano v. Testa
| Decision Date | 22 September 1978 |
| Citation | 409 N.Y.S.2d 302,64 A.D.2d 1019 |
| Parties | Judi ANDREANO, Respondent, v. Ray TESTA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Noto, Rudin & Berlowitz, Rochester, for appellant by David Berlowitz, Rochester.
Culley, Marks, Corbett, Tanenbaum, Reifsteck & Potter, Rochester, for respondent by Scott A. Forsyth, Rochester.
Before MARSH, P. J., and MOULE, SIMONS, HANCOCK and WITMER, JJ.
This action was commenced in Monroe County Court on October 25, 1976 by service of a summons with notice for breach of contract in the amount of $3,500.00. Defendant served a notice of appearance and demand for complaint on November 12, 1976; however, the complaint was not served on defendant's attorney until February 9, 1978, at which time plaintiff also served a notice of motion returnable February 22, 1978 to increase the ad damnum clause to $22,000.00 and to remove the action to Monroe County Supreme Court. The attorney for defendant returned the complaint to plaintiff by letter dated February 15, 1978, enclosing therein an affidavit in support of a cross-motion by defendant for dismissal of the action under CPLR 3012(b) for failure to serve the complaint within 20 days of his demand. Special Term granted plaintiff's motions and denied defendant's cross-motion.
To resist successfully a motion to dismiss under CPLR 3012(b), a plaintiff must show that his delay in serving the complaint was excusable, and that his cause of action is meritorious (e. g., Warren v. Baker, 57 A.D.2d 709, 395 N.Y.S.2d 271). A heavy burden of explaining his dilatory conduct rests upon plaintiff (Coons v. After Dark in Rochester, 56 A.D.2d 738, 392 N.Y.S.2d 742). The asserted explanation for the substantial delay in serving a complaint was that the attorneys for both parties had agreed to treat the matter informally, discussing arbitration as a possible means of resolving the dispute, and that settlement negotiations were being conducted. The record, however, shows that no extension of time had been given to plaintiff and that the last communication regarding settlement was some time around June 1977. Settlement negotiation, as an excuse for delay, ceases to have effect within a brief interval after the last communication (Solomon v. Perkins, 52 A.D.2d 753, 754, 382 N.Y.S.2d 208, 209; Sortino v. Fisher, 20 A.D.2d 25, 29, 245 N.Y.S.2d 186, 192). On these facts, we are unable to conclude that plaintiff has met the heavy burden of explanation which is cast upon him.
Moreover, plaintiff has failed to show the existence of a meritorious cause of action. The only proof submitted in support of the cause of action was an affidavit of plaintiff's attorney, who...
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