Barasch v. Micucci

• Decision Date: 25 March 1980
• Citation: 427 N.Y.S.2d 732,404 N.E.2d 1275,49 N.Y.2d 594
• Parties: , 404 N.E.2d 1275 Lynne BARASCH et al., Respondents, v. Theresa MICUCCI et al., Defendants, and Welbilt, Inc., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 732

427 N.Y.S.2d 732

49 N.Y.2d 594, 404 N.E.2d 1275

Lynne BARASCH et al., Respondents, v. Theresa MICUCCI et al., Defendants, and Welbilt, Inc., Appellant.

Court of Appeals of New York.

March 25, 1980.

Walter Williamson and David S. Ratner, New York City, for appellant.

Jonathan R. Kopald, Highland Falls, for respondents.

OPINION OF THE COURT

GABRIELLI, Judge.

In this action for personal injuries resulting from an explosion of a gas stove, defendant manufacturer seeks to have the cause of action dismissed on the grounds specified in CPLR 3012 (subd. (b)). That provision authorizes a defendant to serve a demand for a complaint upon the plaintiff where the action has been commenced by service of summons alone and to move for dismissal if the complaint is not furnished within 20 days following service of the demand. Special Term denied the dismissal motion, primarily because it found that the defendant in this case had not been prejudiced by the plaintiff's delay in serving the complaint. The Appellate Division affirmed, without opinion, and certified the following question of law for consideration by this court: "Did the order of the Supreme Court, as affirmed by this Court, constitute an abuse of discretion as a matter of law?" (See CPLR 5602, subd. (b), par. 1; 5713.)

Preliminarily, we note that the issue thus certified by the Appellate Division does pose a question of law "decisive of the correctness of its determination" (CPLR 5713; see Patrician Plastic Corp. v. Bernadel Realty Corp., 25 N.Y.2d 599, 307 N.Y.S.2d 868, 256 N.E.2d 180). While it is true that this court has no power to review an exercise of discretion by the courts below in the ordinary case (see Cohen and Karger, Powers of the New York Court of Appeals, pp. 368-369), the possibility that the lower court's discretion was abused does give rise to a question of law that is cognizable in this court. Hence, this court could conclude in the present appeal that Special Term abused its discretion by denying defendant's request for relief and, if we so held, our resolution of the certified question would be "decisive", since it would mandate a reversal of the result reached below (Bata v. Bata, 304 N.Y. 51, 105 N.E.2d 623; Cohen and Karger, Powers of the New York Court of Appeals, p. 377; 7 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 5602.12, n. 38; par. 5602.13; cf. Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619; New York Post Corp. v. Kelley, 296 N.Y. 178, 71 N.E.2d 456). ¹

Turning to the merits, we find that, as a matter of law, there was such an abuse of discretion in this case. Although the lower courts enjoy considerable latitude in determining whether to dismiss an action pursuant to CPLR 3012 (subd. (b)) (see Sortino v. Fisher, 20 A.D.2d 25, 27-28, 245 N.Y.S.2d 186), the cases suggest that their decisions must be based upon a genuine consideration of several specific factors.

First, in order to avoid dismissal for failure timely to serve a complaint, the plaintiff must demonstrate a reasonable excuse for the delay (e. g., Odess v. Medical Center, Teamster Local 1034, 67 A.D.2d 941, 413 N.Y.S.2d 205; Hellner v. Mannow, 41 A.D.2d 525, 340 N.Y.S.2d 15 app. dsmd. 32 N.Y.2d 897, 346 N.Y.S.2d 815, 300 N.E.2d 155; Graziano v. Albanese, 24 A.D.2d 712, 263 N.Y.S.2d 20; cf. Di Russo v. Kravitz, 27 A.D.2d 926, 279 N.Y.S.2d 586, affd. 21 N.Y.2d 1008, 290 N.Y.S.2d 928, 238 N.E.2d 329). While the decision as to what constitutes a reasonable excuse ordinarily lies within the sound discretion of the trial court, we would stress that those excuses which may be roughly categorized under the heading of "law office failures" cannot properly serve as a basis for defeating a motion to dismiss under CPLR 3012 (subd. (b)) (e. g., Ferrentino v. Farragut Gardens No. 5, 35 A.D.2d 815, 316 N.Y.S.2d 673, app. dsmd. 28 N.Y.2d 579, 319 N.Y.S.2d 616, 268 N.E.2d 328; Kriegsman v. Rosenfeld, 35 A.D.2d 693, 314 N.Y.S.2d 601; Wade v. Miele, 34 A.D.2d 656, 310 N.Y.S.2d 205; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3012.15).

Second, in addition to showing an adequate justification for delay in serving the complaint, the plaintiff must also demonstrate to the court that the claim against the defendant has legal merit (e. g., De Stefano v. Nash, 40 A.D.2d 1010, 338 N.Y.S.2d 919; Beckham v. Lefferts Gen. Hosp., 36 A.D.2d 726, 320 N.Y.S.2d 263; see Siegel, Practice Commentaries, McKinneys Cons.Laws of N.Y., Book 7B, CPLR 3012, pp. 590-591). This requirement may be satisfied by the filing of one or more "affidavits of merit" containing evidentiary facts and attested to by individuals with personal knowledge of those facts (cf. Andreano v. Testa, 64 A.D.2d 1019, 409 N.Y.S.2d 302; Ferreri v. Winston Mall, 54 A.D.2d 970, 388 N.Y.S.2d 675; Sortino v. Fisher, supra, 20 A.D.2d at pp. 31-32, 245 N.Y.S.2d 186). As a general rule, these affidavits must be sufficient to establish prima facie that the plaintiff has a good cause of action. We note, however, that there can be no rigid standards in this context and that, consequently, decisions concerning the sufficiency of a plaintiff's affidavits of merit should ordinarily be left to the discretion of the lower courts.

Finally, we recognize that a variety of other factors such as the length of the delay, the complexity of the facts underlying the plaintiff's claim and the existence of prior settlement negotiations may have a bearing upon a court's decision to grant or deny relief under CPLR 3012 (subd. (b)) (see Sortino v. Fisher, 20 A.D.2d 25, 245 N.Y.S.2d 186, supra ). Because the circumstances which may cause a plaintiff to postpone service of his complaint are too numerous and varied to be categorized in any systematic fashion, we are reluctant to adopt an inflexible set of rules to govern the lower courts' decisions in this area. Rather, we prefer to confine the scope of our review in these cases to instances in which the lower court has abused its discretionary authority by ignoring the significant factors, or by granting or denying relief on the basis of plainly impermissible considerations.

The decision of Special Term in this case is illustrative. The court based its decision, in large measure, upon its conclusion that defendant had not been prejudiced by the plaintiff's five and one-half month delay in serving a complaint. Yet, as we have recently noted, the absence of prejudice to the defendant cannot serve as a basis for withholding relief under CPLR 3012 (subd. (b)) (Verre v. Rosas, 47 N.Y.2d 795, 417 N.Y.S.2d 929, 391 N.E.2d 1010; see 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3012.15). Moreover, although Special Term found that plaintiff had a meritorious cause of action, its finding is without support since it was based solely upon the affidavit of plaintiff's attorney, who had no personal knowledge of the facts (cf. Rotuba Extruders v. Ceppos, 46 N.Y.2d...