Drake v. Bates

Appellate Division of the Supreme Court of New York

Drake v. Bates

49 A.D.3d 1098, 853 N.Y.2d 733

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2008

StatusPublished

Cited by4 cases

This text of 49 A.D.3d 1098 (Drake v. Bates) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drake v. Bates, 49 A.D.3d 1098, 853 N.Y.2d 733 (N.Y. Ct. App. 2008).

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Opinion

Rose, J.

Plaintiff commenced this negligence action to recover alleged damages sustained while he was incarcerated at the Schoharie County Jail. After service of a summons with notice, defendants served a notice of appearance and demand for complaint on October 17, 2005. After plaintiff failed to serve a complaint, defendants moved on October 18, 2006 for dismissal of the action pursuant to CPLR 3012 (b). Supreme Court granted the motion and plaintiff appeals.

To successfully oppose a motion to dismiss for failing to timely serve a complaint pursuant to CPLR 3012 (b), plaintiff must show a reasonable excuse for the delay and a meritorious cause of action (see Norrish v Pacini, 29 AD3d 1063, 1063 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705, 706 [2006]). Affording Supreme Court considerable discretion in evaluating plaintiff’s opposition to defendants’ motion to dismiss (see Brown v Hannaford Bros. Co., 27 AD3d 815, 816 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706), we find no abuse of discretion in the determination that the excuse for failing to file a complaint—namely that his attorney could not discuss the matter with plaintiff during the one-year delay due to plaintiff being reincarcerated in another county—was unreasonable. Furthermore, as plaintiff did not submit an affidavit or a verified pleading containing evidentiary facts attested by someone with personal knowledge of those facts in opposition to the mo[1099]*1099tion to dismiss, plaintiff failed to demonstrate a meritorious cause of action (see Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706). Finally, plaintiff cannot avoid the consequences of the acts or omissions of his retained counsel (see Link v Wabash R. Co., 370 US 626, 633-634 [1962]; Department of Social Servs. v Trustum C.D., 97 AD2d 831, 831 [1983], lv denied 61 NY2d 605 [1984]), and no right to the effective assistance of counsel is implicated here (see Matter of Chase, 44 AD3d 1180, 1182 [2007]; Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862, 864 [2005], lv denied 6 NY3d 710 [2006]; Olmstead v Federated Dept. Stores, 208 AD2d 979, 982 [1994], lv denied 85 NY2d 811 [1995]).

Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, without costs.

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Rose, J.

Plaintiff commenced this negligence action to recover alleged damages sustained while he was incarcerated at the Schoharie County Jail. After service of a summons with notice, defendants served a notice of appearance and demand for complaint on October 17, 2005. After plaintiff failed to serve a complaint, defendants moved on October 18, 2006 for dismissal of the action pursuant to CPLR 3012 (b). Supreme Court granted the motion and plaintiff appeals.

To successfully oppose a motion to dismiss for failing to timely serve a complaint pursuant to CPLR 3012 (b), plaintiff must show a reasonable excuse for the delay and a meritorious cause of action (see Norrish v Pacini, 29 AD3d 1063, 1063 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705, 706 [2006]). Affording Supreme Court considerable discretion in evaluating plaintiff’s opposition to defendants’ motion to dismiss (see Brown v Hannaford Bros. Co., 27 AD3d 815, 816 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706), we find no abuse of discretion in the determination that the excuse for failing to file a complaint—namely that his attorney could not discuss the matter with plaintiff during the one-year delay due to plaintiff being reincarcerated in another county—was unreasonable. Furthermore, as plaintiff did not submit an affidavit or a verified pleading containing evidentiary facts attested by someone with personal knowledge of those facts in opposition to the mo[1099]*1099tion to dismiss, plaintiff failed to demonstrate a meritorious cause of action (see Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706). Finally, plaintiff cannot avoid the consequences of the acts or omissions of his retained counsel (see Link v Wabash R. Co., 370 US 626, 633-634 [1962]; Department of Social Servs. v Trustum C.D., 97 AD2d 831, 831 [1983], lv denied 61 NY2d 605 [1984]), and no right to the effective assistance of counsel is implicated here (see Matter of Chase, 44 AD3d 1180, 1182 [2007]; Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862, 864 [2005], lv denied 6 NY3d 710 [2006]; Olmstead v Federated Dept. Stores, 208 AD2d 979, 982 [1994], lv denied 85 NY2d 811 [1995]).

Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, without costs.

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49 A.D.3d 1098, 853 N.Y.2d 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-bates-nyappdiv-2008.

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