Leff v. Lemonia Restaurant Corp.

187 A.D.2d 252, 589 N.Y.S.2d 444, 1992 N.Y. App. Div. LEXIS 12579

Opinion

Order, Supreme Court, New York County (Stuart C. Cohen, J.), entered June 19, 1991, which denied plaintiff’s cross-motion for an extension of time to file a complaint with leave to renew within 30 days upon submission of an affidavit of merit, unanimously reversed, on the law, the facts and in the exercise of discretion, and the motion granted, without costs.

In order to avoid dismissal for failure to comply with the requirements of CPLR 3012 (b) for timely service of a complaint, a plaintiff must demonstrate a reasonable excuse for the delay and the meritorious nature of the claim (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904). In this case, plaintiff satisfied those requirements. Plaintiff has shown that during the time which elapsed between October 1, 1990, to which date the parties had mutually agreed to extend plaintiff’s time to file a complaint following defendant’s initial demand, and February 27, 1991, when defendant moved to dismiss, the parties were actively involved in settlement negotiations (Siravakian v Efremidis, 49 AD2d 863). Moreover, plaintiff, an inspector with the New York City Department of Health, has adequately demonstrated the merit of his claim by presenting evidence that he was injured as a result of a fall on a flight of broken and defective steps in defendant’s restaurant. We further note that defendant has not shown that it has suffered any prejudice as a result of this delay. Under these circumstances, we find that plaintiff’s motion for leave to file a complaint should have been granted. Concur—Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.