J. Tortorella Swimming Pools, Inc. v. Incredible Coatings Corp.

Appellate Division of the Supreme Court of New York

J. Tortorella Swimming Pools, Inc. v. Incredible Coatings Corp.

35 A.D.3d 376, 824 N.Y.S.2d 732

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

DecidedDecember 5, 2006

StatusPublished

Cited by2 cases

This text of 35 A.D.3d 376 (J. Tortorella Swimming Pools, Inc. v. Incredible Coatings Corp.) 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

J. Tortorella Swimming Pools, Inc. v. Incredible Coatings Corp., 35 A.D.3d 376, 824 N.Y.S.2d 732 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 6, 2006, which granted the defendant’s motion to dismiss the action and denied its cross motion to compel the defendant to accept service of its complaint.

Ordered that the order is affirmed, with costs.

To avoid dismissal for failure to timely serve a complaint after a demand therefor has been served pursuant to CPLR 3012 (b), a plaintiff must demonstrate a reasonable excuse for the delay in serving the complaint and a meritorious cause of action (see Maldonado v Suffolk County, 23 AD3d 353, 353-354 [2005]; Gagnon v J.S. Intl. Shipping Corp., 8 AD3d 336, 337 [2004]). The Supreme Court providently exercised its discretion in granting the defendant’s motion to dismiss the action because the plaintiffs unspecified law office failure excuse did not constitute a reasonable excuse (see Quinn v Wenco Food Sys., Co., 269 AD2d 437 [2000]; Bravo v New York City Hous. Auth., 253 AD2d 510 [1998]). Florio, J.P., Crane, Spolzino and Covello, JJ., concur.

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In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 6, 2006, which granted the defendant’s motion to dismiss the action and denied its cross motion to compel the defendant to accept service of its complaint.

Ordered that the order is affirmed, with costs.

To avoid dismissal for failure to timely serve a complaint after a demand therefor has been served pursuant to CPLR 3012 (b), a plaintiff must demonstrate a reasonable excuse for the delay in serving the complaint and a meritorious cause of action (see Maldonado v Suffolk County, 23 AD3d 353, 353-354 [2005]; Gagnon v J.S. Intl. Shipping Corp., 8 AD3d 336, 337 [2004]). The Supreme Court providently exercised its discretion in granting the defendant’s motion to dismiss the action because the plaintiffs unspecified law office failure excuse did not constitute a reasonable excuse (see Quinn v Wenco Food Sys., Co., 269 AD2d 437 [2000]; Bravo v New York City Hous. Auth., 253 AD2d 510 [1998]). Florio, J.P., Crane, Spolzino and Covello, JJ., concur.

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Bluebook (online)

35 A.D.3d 376, 824 N.Y.S.2d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-tortorella-swimming-pools-inc-v-incredible-coatings-corp-nyappdiv-2006.

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