Goldstein v. Lopresti

• Decision Date: 30 May 2001
• Citation: 284 AD2d 497,726 N.Y.S.2d 579
• Parties: (A.D. 2 Dept. 2001) Harry Goldstein, etc., respondent, v. Anthony Lopresti, etc., et al., appellants. 2000-10539 Submitted-
• Court: New York Supreme Court — Appellate Division

Page 579

726 N.Y.S.2d 579 (A.D. 2 Dept. 2001)

Harry Goldstein, etc., respondent, v. Anthony Lopresti, etc., et al., appellants.

2000-10539

SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT

Submitted-May 30, 2001

June 25, 2001

Ivone, Devine & Jensen, Lake Success, N.Y. (Michael Ivone of counsel), for appellant Anthony Lopresti.

Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Laurence G. McDonnell and Kevin W. O'Reilly of counsel), for appellant John J. Biordi.

Bruce G. Clark, New York, N.Y. (Nicholas O. Mahoney of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered October 11, 2000, as denied their respective motions pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them on the ground that the plaintiff failed to timely serve a complaint.

ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, the motions are granted, and the action is dismissed.

The Supreme Court improvidently exercised its discretion in denying the defendants' respective motions pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against them on the ground that the plaintiff failed to timely serve a complaint. In opposing the motions, the plaintiff was required to demonstrate a reasonable excuse for the delay in serving the complaint four months after it was due and one month after service of the motion of the defendant John J. Biordi to dismiss (see, CPLR 3012[d]; Matter of People v BBC Props. Portfolio Corp., A.D.2d [2d Dept., Mar. 19, 2001]; Elbaz v Lieb, 269 A.D.2d 489; Quinn v Wenco Food Sys., Co., 269 A.D.2d 437; Ortiz v Delmar Recycling Corp., 244 A.D.2d 392; Roux v Patrick, 226 A.D.2d 695). The excuses proffered, that the attorney in charge of the plaintiff's case ceased her employment at the law firm retained by the plaintiff on an unspecified date, and that unspecified delays arose, were not reasonable under the circumstances (see, Bravo v New York City Hous. Auth., 253 A.D.2d 510; Tolliver v County of Nassau, 231 A.D.2d 708; Putney v Pearlman, 203 A.D.2d 333; Murdock v Center for Special Surgery, 199 A.D.2d 482; Korea Exch. Bank v Attilio, 186 A.D.2d 634).

RITTER, J.P., ALTMAN, McGINITY, SMITH and COZIER, JJ., concur.