Ganchrow v. Kremer

• Decision Date: 17 January 2018
• Docket Number: 2016–04857,Index No. 703697/14
• Citation: 157 A.D.3d 771,69 N.Y.S.3d 352
• Parties: Jacob GANCHROW, et al., respondents, v. Karen KREMER, appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 771

69 N.Y.S.3d 352

Jacob GANCHROW, et al., respondents,

v.Karen KREMER, appellant.

2016–04857

Index No. 703697/14

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

Submitted—October 16, 2017

January 17, 2018

Russo & Tambasco, Melville, N.Y. (Yamile Al–Sullami of counsel), for appellant.

LEONARD B. AUSTIN, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County(Raffaele, J.), entered April 14, 2016, which denied her motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint and granted the plaintiffs' cross motion, in effect, to extend the time to serve the complaint.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the defendant's motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint is granted, and the plaintiffs' cross motion, in effect, to extend the time to serve the complaint is denied.

On January 15, 2013, the defendant, while operating her own vehicle, allegedly was involved in an accident with a vehicle in which the plaintiffs, Jacob Ganchrow(hereinafter the injured plaintiff) and Susan Ganchrow, were passengers.By the filing of a summons with notice, the plaintiffs commenced this personal injury action.The defendant served the plaintiffs with a notice of appearance and demand for a complaint on October 14, 2014.The plaintiffs had until November 10, 2014, to serve their complaint upon the defendant, but failed to do so (seeCPLR 2103[b][2];3012[b];General Construction Law § 25–a[1] ).

On September 30, 2015, the defendant moved pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint.In an affirmation in support of the motion, the defendant's counsel stated that on September 2, 2015, he had phoned the plaintiffs' counsel to request a response to the demand for a complaint.The defendant's counsel also submitted with the motion a copy of a letter he sent to the plaintiffs' counsel that same day memorializing their phone conversation.The plaintiffs cross-moved on November 12, 2015, in effect, to extend their time to serve their complaint.The plaintiffs annexed to their cross motion a proposed complaint verified by their counsel, and an uncertified copy of a police accident report concerning the accident which gave rise to this action.The Supreme Court denied the defendant's motion and granted the plaintiffs' cross motion, and the defendant appeals.

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 has to demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action (seeCountry Serv., Inc. v. Feiden & Assoc., P.C.,92 A.D.3d 914, 915, 938 N.Y.S.2d 913 ).Although it is generally within the sound discretion of the motion court to determine what constitutes a reasonable excuse (seePristavec v. Galligan,32 A.D.3d 834, 834–835, 820 N.Y.S.2d 529 ), reversal is warranted if that discretion is improvidently exercised (seeThompson v. Steuben Realty Corp.,18 A.D.3d 864, 865, 795 N.Y.S.2d 470;Orwell Bldg. Corp. v. Bessaha,5 A.D.3d 573, 574, 773 N.Y.S.2d 126 ).

Here, the plaintiffs failed to demonstrate either that they had a reasonable excuse for the delay in serving their complaint or that their causes of action were meritorious.The excuse for the failure to serve a complaint proffered by the plaintiffs' counsel, that when the defendant's demand was received by his office on October 18, 2014, an unidentified member of his support staff "apparently" placed the demand in the file without showing it to him, did not constitute a reasonable excuse (see e.g.J.C. Ryan...