Cobbs v. Lefrak Organization, Inc.

85 A.D.2d 616, 445 N.Y.S.2d 27, 1981 N.Y. App. Div. LEXIS 16431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1981
• Status: Published

Opinion

In an action to recover damages for false arrest, assault and malicious prosecution, defendant appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated May 19, 1981, which denied, as moot, its motion to dismiss the action for failure to serve a complaint within 20 days after a demand was made (see CPLR 3012, subd [b]). Order reversed on the law, with $50 costs and disbursements, and defendant’s motion to dismiss is granted. A plaintiff who seeks to serve a complaint, where a demand has been made, after expiration of the 20-day statutory period specified in CPLR 3012 (subd [b]), must (1) demonstrate that there was a reasonable excuse for the delay, and (2) make a prima facie showing of legal merit. (See Barasch v Micucci, 49 NY2d 594; Bruno v Village of Port Chester, 77 AD2d 580.) Plaintiffs have offered no excuse for their delay, and have set forth insufficient evidentiary facts to establish a prima facie showing of legal merit. Special Term improperly denied defendant’s motion to dismiss (see Verre v Rosas, 47 NY2d 795). Mollen, P. J., Gulotta, Weinstein and Thompson, JJ., concur.