Carducci v. Russell

• Decision Date: 24 September 2014
• Docket Number: 2013-05219
• Citation: 2014 N.Y. Slip Op. 06290,993 N.Y.S.2d 119,120 A.D.3d 1375
• Parties: Antonio CARDUCCI, appellant, v. Robert RUSSELL, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1375

993 N.Y.S.2d 119

2014 N.Y. Slip Op. 06290

Antonio CARDUCCI, appellant

v.Robert RUSSELL, et al., respondents, et al., defendants.

2013-05219

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

Sept. 24, 2014.

Brian R. Hoch, White Plains, N.Y., for appellant.

Peter J. Constantine, Yonkers, N.Y., for respondents.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 19, 2013, which granted that branch of the motion of the defendants Robert Russell and Lisa Russell which was pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On July 25, 2011, the plaintiff, acting pro se, commenced this action by filing a summons with notice with the New York State Courts Electronic Filing System (hereinafter NYSCEF). Simultaneously, he filed a “notice of hard copy submission-e-filed case” to exempt him from e-filing. On October 13, 2011, the plaintiff served the defendants Robert Russell and Lisa Russell (hereinafter together the Russell defendants) with the summons with notice and a “notice of hard copy submission—e-filed case.” On November 2, 2011, the Russell defendants uploaded a notice of appearance and demand for service of a complaint to the NYSCEF system. Although the Russell defendants did not execute an affidavit of service, they attached a “certificate of service,” which indicated that they mailed a copy of the same documents to the plaintiff. It is uncontested that the plaintiff did not serve the Russell defendants with a proposed complaint until on or about November 14, 2012, more than one year later. By notice of motion dated December 4, 2012, the Russell defendants moved, inter alia, pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them. The plaintiff's affidavit submitted in opposition to the motion stated, in pertinent part, “subsequent to commencement, but prior to serving the summons on the [Russell] defendants, your deponent retained The Law Office of Brian R. Hoch, Esq. to represent me in this action.”

To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Dayan v. Darche, 96 A.D.3d 708, 945 N.Y.S.2d 735 ; Perez–Faringer v. Heilman, 79 A.D.3d 837, 838, 912 N.Y.S.2d 418 ; Gibbons v. Court Officers' Benevolent Assn. of Nassau County, 78 A.D.3d 654, 654, 909 N.Y.S.2d 917 ; Pristavec v. Galligan, 32 A.D.3d 834, 834, 820 N.Y.S.2d 529 ; Maldonado v. Suffolk County, 23 A.D.3d 353, 353–354, 803 N.Y.S.2d 439 ).

Here, the record indicates that the plaintiff was no longer acting in a pro se capacity when the Russell defendants uploaded the notice of appearance and demand to the NYSCEF system. The plaintiff's purported reasonable excuse that the failure to serve the complaint was a “technical glitch” of the NYSCEF system is unavailing. The Russell defendants' notice of appearance and...