Bardales v. Blades

• Decision Date: 29 March 1993
• Citation: 191 A.D.2d 667,595 N.Y.S.2d 553
• Parties: Cres BARDALES, Appellant, v. Ruben BLADES, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 553

595 N.Y.S.2d 553

191 A.D.2d 667

Cres BARDALES, Appellant, v. Ruben BLADES, etc., Respondent.

Supreme Court, Appellate Division,

Second Department.

March 29, 1993.

Hal Ian Wolsky, Garden City (Jon A. Steinberg, on the brief), for appellant.

Fischbein Badillo Wagner, New York City (Robert J. Semaya, of counsel), for respondent.

Before BRACKEN, J.P., and BALLETTA, EIBER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Graci, J.), dated January 7, 1991, which granted the defendant's motion to dismiss the action for failure to serve a complaint, and denied the plaintiff's cross motion to vacate his default in serving a complaint and to compel the defendant to accept late service of the complaint.

ORDERED that the order is affirmed, with costs.

In 1988 the plaintiff commenced a breach of contract action against the defendant by substituted service of a summons and complaint. However, this action was subsequently dismissed upon the defendant's motion when the court found that the substituted service failed to effect personal jurisdiction over the defendant. Almost two years later, in July of 1990, the plaintiff commenced the instant breach of contract action against the defendant by personal service of the summons only. Thereafter, the defendant's attorney, Howard A. Singer, sent two letters to the plaintiff's counsel demanding service of the complaint, dated August 13, 1990, and September 17, 1990, respectively. Despite these demands, no complaint was forthcoming from the plaintiff's counsel.

On November 7, 1990, 50 days after the date of the second demand and 65 days after the complaint was due, the defendant moved to dismiss the plaintiff's action pursuant to CPLR 3012(b). On November 8, 1990, the plaintiff served a complaint on the defendant which was essentially identical to the complaint in the action dismissed in 1988. In a letter dated November 13, 1990, the defendant rejected the complaint as untimely. The plaintiff then cross-moved pursuant to CPLR 2005 to vacate his default and to compel the defendant to accept late service of the complaint. The Supreme Court determined that the plaintiff's default was inexcusable and granted the defendant's motion to dismiss. We agree.

"The determination of what constitutes a reasonable excuse for a default 'lies within the sound discretion of the trial court' " (Perellie v. Crimson's Rest., 108 A.D.2d 903, 904, 485 N.Y.S.2d 789, quoting from DeVito v. Marine Midland Bank, 100 A.D.2d 530, 531, 473 N.Y.S.2d 218). In the case at bar, the plaintiff contends that the principal reason why he neglected to timely serve the complaint was because his practice had become overwhelmed by his efforts to assist his friend, an attorney who had been...