Balgley v. Cammarata

299 A.D.2d 432, 749 N.Y.S.2d 732

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2002
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Cammer, J.), dated July 26, 2001, which granted the respective motions of the defendants Angelo Cammarata and John Kehoe, the defendant Sheldon Schechter, and the defendant Adrian Baranetsky, to dismiss the action pursuant to CPLR 3012 (b) for failure to timely serve a complaint.

Ordered that the order is affirmed, with costs.

“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” (Chmielnik v Rosenberg, 269 AD2d 555; see also Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). The plaintiff failed to demonstrate the existence of a meritorious cause of action. Therefore, the Supreme Court properly granted the respective motions to dismiss the complaint. Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.