Belli v. Belli

• Decision Date: 20 July 2022
• Docket Number: 2019–11167,Index No. 525922/18
• Citation: 170 N.Y.S.3d 479 (Mem)
• Parties: Mark F. BELLI, appellant, v. Paul A. BELLI, et al., respondents.
• Court: New York Supreme Court — Appellate Division

170 N.Y.S.3d 479 (Mem)

Mark F. BELLI, appellant,

v.Paul A. BELLI, et al., respondents.

2019–11167

Index No. 525922/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 25, 2022

July 20, 2022

Mark F. Belli, Brooklyn, NY, appellantpro se.

Law Offices of Edmond R. Shinn, Esq., Ltd., Bronx, NY, for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Kings County(Dawn Jimenez–Salta, J.), dated June 19, 2019.The order granted the defendants’ motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff seeks to invalidate certain inter vivos transfers of real estate and stock made by his father, Franco Belli, on the grounds of undue influence by the plaintiff's brother, the defendantPaul A. Belli, and lack of capacity to make the transfers.The Supreme Court did not err in granting the defendants’ motion pursuant to CPLR 3012(b) to dismiss this action for failure to timely serve a complaint.

"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 CPLR 3012(d), a plaintiff[must] demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action"( Percival v. Northwell Health Sys.,173 A.D.3d 916, 917, 102 N.Y.S.3d 263[internal quotation marks omitted];seeRiley v. Health & Hosp. Corp.,153 A.D.3d 742, 57 N.Y.S.3d 898;Lobel v. Hilltop Vil. Coop., No. 4,138 A.D.3d 938, 28 N.Y.S.3d 633 )." ‘The determination of what constitutes a reasonable excuse is within the sound discretion of the court’ "( Mezar v. Defranco,190 A.D.3d 849, 850, 136 N.Y.S.3d 782, quotingMazzola v. Village Hous. Assoc., LLC,164 A.D.3d 668, 669, 83 N.Y.S.3d 127 ).

Here, even assuming the plaintiff had a reasonable excuse for the delay in serving the complaint, he failed to demonstrate a potentially meritorious cause of action (seePercival v. Northwell Health Sys.,173 A.D.3d at 917, 102 N.Y.S.3d 263 ).The allegations in the plaintiff's proposed verified complaint were based mainly upon information and belief, and were insufficient to establish a meritorious claim (see generallyFekete v. Camp Skwere,16 A.D.3d 544, 792 N.Y.S.2d 127 ).Moreover, to...