Scott v. Cnty. of Albany
| Decision Date | 28 March 2019 |
| Docket Number | 527011 |
| Citation | 97 N.Y.S.3d 328,170 A.D.3d 1475 |
| Parties | John C. SCOTT, Individually and as Executor of the Estate of Bernice Scott, Deceased, Appellant, v. COUNTY OF ALBANY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
170 A.D.3d 1475
97 N.Y.S.3d 328
John C. SCOTT, Individually and as Executor of the Estate of Bernice Scott, Deceased, Appellant,
v.
COUNTY OF ALBANY, Respondent.
527011
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: January 15, 2019
Decided and Entered: March 28, 2019
The Rehfuss Law Firm PC, Latham (Stephen J. Rehfuss of counsel), for appellant.
Burke, Scolamiero & Hurd, LLP, Albany (Jessica L. Darrow of counsel), for respondent.
Before: Egan Jr., J.P., Devine, Rumsey and Pritzker, JJ.; Garry, P.J., vouched in.
MEMORANDUM AND ORDER
Rumsey, J.
Bernice Scott (hereinafter decedent) was 89 years old and suffering with Alzheimer's disease when she became a resident of a nursing home operated by defendant in March 2014. She contracted pneumonia and, following a brief hospitalization, died on November 13, 2014. Plaintiff, decedent's son and the executor of her estate, commenced this action in February 2016 by filing a summons with notice asserting claims for negligence, malpractice and wrongful death. Defendant was served with
the summons with notice in June 2016 and promptly appeared and demanded a complaint. Plaintiff served a complaint in February 2017, which defendant rejected as untimely. Plaintiff moved, pursuant to CPLR 3012(d), for an extension of time to serve the complaint and defendant cross-moved to dismiss the action pursuant to CPLR 3012(b). Supreme Court denied plaintiff's motion and granted defendant's cross motion. Plaintiff appeals.
Supreme Court has the discretion to extend a party's time to serve a complaint "upon a showing of reasonable excuse for the delay or default" ( CPLR 3012[d] ; see Gerster's Triple E. Towing and Repair, Inc. v. Pishon Trucking, LLC, 167 A.D.3d 1353, 1355, 92 N.Y.S.3d 163 [2018] ). A party seeking to avoid dismissal...
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