Kam Yue Man v. Mantione

174 A.D.2d 710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1991
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated January 16, 1990, which denied their motion to dismiss the action and granted the plaintiffs’ cross motion pursuant to CPLR 3012 (d) to compel the defendants to accept the untimely service of the complaint.

Ordered that the order is reversed, on the law, with costs, the defendants’ motion is granted, the plaintiffs’ cross motion is denied, and the action is dismissed.

It is well settled that for a plaintiff to avoid dismissal of the action for failure to timely serve a complaint, a reasonable excuse for the delay and the meritorious nature of the claim must be demonstrated (Marion v Notre Dame Academy High School, 133 AD2d 614; Benson v Rana Mgt., 131 AD2d 798). The plaintiffs herein did not proffer a reasonable excuse for their failure to timely serve the complaint despite the written stipulation extending the time within which the complaint was to be served. Further, since the complaint was not verified by the plaintiffs, it did not constitute an affidavit of merit (see, Oversby v Linde Div., 121 AD2d 373; cf., CPLR 105 [t]) and the plaintiffs otherwise failed to establish the meritorious nature of their action. Accordingly, the defendants’ motion should have been granted, the plaintiffs’ cross motion should have been denied, and the action should have been dismissed (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). Bracken, J. P., Kooper, Lawrence, Balletta and O’Brien, JJ., concur.