McIntosh v. Genesee Valley Laser Ctr.

• Decision Date: 03 October 2014
• Docket Number: 970 CA 13-01004.
• Citation: 121 A.D.3d 1560,993 N.Y.S.2d 844,2014 N.Y. Slip Op. 06725
• Parties: John A. McINTOSH, Plaintiff–Appellant, v. GENESEE VALLEY LASER CENTRE and Holly B. Hahn, M.D., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1560
993 N.Y.S.2d 844
2014 N.Y. Slip Op. 06725

John A. McINTOSH, Plaintiff–Appellant
v.
GENESEE VALLEY LASER CENTRE and Holly B. Hahn, M.D., Defendants–Respondents.

970 CA 13-01004.

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

Oct. 3, 2014.

993 N.Y.S.2d 844

John A. McIntosh, Plaintiff-Appellant Pro Se.

Hirsch & Tubiolo, P.C., Rochester (Bryan Kornfield of Counsel), for Defendants–Respondents.

PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, and DeJOSEPH, JJ.

Opinion

MEMORANDUM:

121 A.D.3d 1560

Plaintiff appeals from an order granting defendants' motion to dismiss the

993 N.Y.S.2d 845

action based on the failure of plaintiff to comply with their demand for service of a complaint pursuant to CPLR 3012(b). We affirm. “To avoid dismissal for failure to timely 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 meritorious cause of action” (Berges v. Pfizer, Inc., 108 A.D.3d 1118, 1119, 969 N.Y.S.2d 657 [internal quotation marks omitted] ).

“It is generally within the sound discretion of [Supreme Court] to determine what constitutes a reasonable excuse for the delay in serving the complaint” (Mitchell v. Erie County Med. Ctr. Corp., 70 A.D.3d 1408, 1408–1409, 893 N.Y.S.2d 921, lv. dismissed 14 N.Y.3d 881, 903 N.Y.S.2d 336, 929 N.E.2d 399 [internal quotation marks omitted]; see Kordasiewicz v. BCC Prods., Inc., 26 A.D.3d 853, 854, 809 N.Y.S.2d 748 ). Here, defendants served plaintiff with a demand for service of a complaint one week after plaintiff served defendants with a summons with notice. Upon plaintiff's failure to serve a complaint by the applicable deadline (see CPLR 3012[b] ; see also CPLR 2103[b][2] ), defendants moved to dismiss the action

121 A.D.3d 1561

pursuant to CPLR 3012(b). We conclude that plaintiff failed to provide any reasonable excuse for the delay (see generally Fasano v. J.C. Penney Corp., 59 A.D.3d 1102, 1102, 872 N.Y.S.2d 613 ). Plaintiff's contention that he served a complaint upon defendants' attorney by mail is unsubstantiated by the record, and plaintiff's reliance in his reply brief on purported conversations between himself and defendants' attorney to support his contention that he served a complaint is improper inasmuch as such conversations are outside the record on appeal (see Britt v. Buffalo Mun. Hous. Auth., 109 A.D.3d 1195, 1197, 972 N.Y.S.2d 381 ). Plaintiff failed to establish at a court appearance that he filed or served a complaint, and his claims concerning such filing or service are belied by a...