Chmielnik v. Rosenberg

269 A.D.2d 555, 703 N.Y.S.2d 754, 2000 N.Y. App. Div. LEXIS 2199

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2000
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendants separately appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered May 20, 1999, which granted the plaintiffs’ motion pursuant to CPLR 3012 (d) to compel them to accept an untimely complaint and denied their respective cross motions to dismiss the action insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motions are granted, and the complaint is dismissed.

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 (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Gibson v Victory Mem. Hosp., 221 AD2d 503). Here, the Supreme Court erred in granting the plaintiffs’ motion to compel the defendants to accept service of a late complaint and denying the defendants’ respective cross motions to dismiss, as the plaintiffs failed to demonstrate the existence of a meritorious cause of action (see, Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852; Gibson v Victory Mem. Hosp., supra).

The plaintiffs’ remaining contentions are without merit. O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.