Young v. Mary Imogene Bassett Hospital

190 A.D.2d 905, 593 N.Y.S.2d 133, 1993 N.Y. App. Div. LEXIS 919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1993
• Status: Published

Opinion

— Appeal from an order of the Supreme Court (Ingraham, J.), entered June 10, 1992 in Otsego County, which conditionally granted defendant’s motion to dismiss the action for failure to timely serve the complaint.

Seven months after defendant served a notice of appearance upon plaintiff and demanded service of the complaint, defendant moved to dismiss the action pursuant to CPLR 3012 (b) for failure to timely serve the complaint. Plaintiff never served defendant with any papers in opposition to the motion. Instead, plaintiff merely served defendant with a complaint days before the return date of the motion and nine months after defendant’s demand therefor. Defendant rejected service of the complaint as untimely.

For plaintiff to avoid dismissal of his action for failure to timely serve a complaint, he must demonstrate a reasonable excuse for his delay and establish the meritorious nature of his claim (see, Adams v Agrawal, 187 AD2d 886, 887; Innerarity v County of Westchester, 144 AD2d 645). On this record, we find that plaintiff has failed in all respects to meet his burden (see, Ferrara v Guardino, 164 AD2d 932, 933). As such, Supreme Court erred, as a matter of law, in not granting defendant’s motion to dismiss without condition (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905; Stolowitz v Mount Sinai Hosp., 60 NY2d 685, 686).

Yesawich Jr., J. P., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the order is modified, on the law, with costs, by reversing so much thereof as imposed conditions on the dismissal of the action, and, as so modified, affirmed.