Brooks v. Inn at Saratoga Ass'n

• Decision Date: 24 December 1992
• Citation: 591 N.Y.S.2d 625,188 A.D.2d 921
• Parties: Glenda L. BROOKS, Appellant, v. INN AT SARATOGA ASSOCIATION, Doing Business as Inn at Saratoga, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 625

591 N.Y.S.2d 625

188 A.D.2d 921

Glenda L. BROOKS, Appellant, v. INN AT SARATOGA ASSOCIATION, Doing Business as Inn at Saratoga, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 24, 1992.

Douglas C. Mills, Saratoga Springs, for appellant.

Edward C. Fassett Law Office (Christopher P. Meyer, of counsel), Albany, for respondent.

Before WEISS, P.J., and MERCURE, CREW, CASEY and HARVEY, JJ.

MEMORANDUM DECISION

Appeals (1) from an order of the Supreme Court (Viscardi, J.), entered August 12, 1991 in Saratoga County, which granted defendant's motion to dismiss the action for failure to serve a complaint, and (2) from an order of said court, entered January 3, 1992 in Saratoga County, which denied plaintiff's motion for reconsideration.

We reject plaintiff's contention that Supreme Court erred in granting defendant's motion to dismiss the action based on her failure to timely serve a complaint (see, CPLR 3012[b]. To avoid dismissal, plaintiff was required to demonstrate a reasonable excuse for the delay, here approximately four months, and make a prima facie showing of legal merit (see, Corrado v. Bendell, 93 A.D.2d 876, 461 N.Y.S.2d 426, appeal dismissed 60 N.Y.2d 552, 467 N.Y.S.2d 1027, 454 N.E.2d 940). This plaintiff failed to do. Initially, we note that once the time to serve the complaint had expired, plaintiff was required to provide the court with a verified complaint or an affidavit of merit (see, A & J Concrete Corp. v. Arker, 54 N.Y.2d 870, 444 N.Y.S.2d 905, 429 N.E.2d 412). Plaintiff did neither of these. Plaintiff failed to offer a satisfactory explanation for her failure to satisfy these requirements. Accordingly, the court did not err in granting defendant's motion on that basis (cf., Sammons v. Freer, 99 A.D.2d 896, 472 N.Y.S.2d 491, affd. 62 N.Y.2d 1018, 479 N.Y.S.2d 518, 468 N.E.2d 700). In any event, plaintiff failed to offer a reasonable excuse for the delay. Although she contends that she was proceeding pro se, the record shows that she chose to proceed on that basis and never claimed that she had been unable to retain an attorney (cf., Harp v. Malyn, 161 A.D.2d 929, 557 N.Y.S.2d 500). A pro se litigant acquires no greater rights than those of any other litigant and cannot use such status to deprive defendant of the same rights as other defendants (see, Davis v. Mutual of Omaha Ins. Co., 167 A.D.2d 714, 562 N.Y.S.2d 883).

Turning next to the denial of that aspect of plaintiff's motion seeking leave to renew, plaintiff was required to show new facts to support the motion or a justifiable excuse for her failure to have placed such facts before the court (see, Matter of Barnes v. State of New York, 159 A.D.2d 753, 552 N.Y.S.2d 57, appeal dismissed 76 N.Y.2d 935, 563 N.Y.S.2d 63, 564 N.E.2d 673). Plaintiff's motion was based primarily on her claim that...