Gagnon v. J.S. International Shipping Corp.

8 A.D.3d 336, 777 N.Y.S.2d 715, 2004 N.Y. App. Div. LEXIS 7803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated July 29, 2003, which granted the defendant’s motion pursuant to CPLR 3012 (b) to dismiss the action 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 (see Brenner v Cross County Shopping Ctr., 308 AD2d 469 [2003]; Meiselman v Central Suffolk Hosp., 273 AD2d 209 [2000]; Chmielnik v Rosenberg, 269 AD2d 555 [2000]). The plaintiff failed to demonstrate a reasonable excuse for the delay in serving a complaint after demand had been made (see Miraglia v County of Nassau, 295 AD2d 411 [2002]; Weiss v Kahan, 209 AD2d 611 [1994]; Premo v Cornell, 83 AD2d 981 [1981], affd 55 NY2d 962 [1982]). Furthermore, the plaintiff failed to make a prima facie showing of merit to his claim that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Grasso v Angerami, 79 NY2d 813 [1991]; Culley v Morrison, 247 AD2d 356 [1998]; Luksic v Killmer, 100 AD2d 864 [1984]). Florio, J.P., Krausman, Townes, Mastro and Fisher, JJ., concur.