Maldonado v. Suffolk County

23 A.D.3d 353, 803 N.Y.S.2d 439

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Burke, J.), dated August 2, 2004, which granted the defendant’s motion pursuant to CPLR 3012 (b) to dismiss the action for failure to timely serve a complaint, and denied their cross motion to deem the proposed complaint timely served and to compel compliance with a notice for discovery and inspection.

Ordered that the order is affirmed, with costs.

To avoid dismissal for failure to timely serve a complaint after demand therefor has been served 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 Tutora v Schirripa, 1 AD3d 349 [2003]; Dunefsky v Petco Animal Supplies, 303 AD2d 620 [2003]; Balgley v Cammarata, 299 AD2d 432 [2002]). The plaintiffs failed to demonstrate either of these criteria. Accordingly, the Supreme Court properly dismissed the action.

The plaintiffs’ remaining contentions are either without merit or do not warrant a reversal. Schmidt, J.P., Santucci, Krausman and Covello, JJ., concur.