A & J Concrete Corp. v. Arker

Oct 15, 1981
Versions:54 N.Y.2d 870
429 N.E.2d 412
444 N.Y.S.2d 905
1981 N.Y. LEXIS 3085

Lead Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

We cannot say, as a matter of law; that Supréme Court abused its discretion by granting plaintiffs’ motion, made pursuant to CPLR 2004, for an extension of time within which to serve their complaint. It is within the court’s power to grant such an extension where it is established, as it was in this case, that the delay in service was not willful or lengthy and that it did not cause any prejudice, to the parties. (See Hickland v Hickland, 56 AD2d 978.)

We would note that the courts enjoy a somewhat broader range of discretion when considering a motion for an extension of time under CPLR 2004 which precedes any motion to dismiss than when considering a motion to dismiss pursuant to CPLR 3012 (subd [b]), whether or not countered by a motion for extension of time. (Cf. Barasch v Micucci, 49 NY2d 594.)

Nor can we say that it was error for the Appellate Division to accept the verified complaint in this case in lieu of an affidavit of merit. (See CPLR 105, subd [s].) Once the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof.





Concurrence Opinion

Fuchsberg, J.

(concurring). Although I join the result on this appeal, I write separately only because I believe it a mistake for the court to suggest that the plaintiffs’ CPLR 2004 motion for an extension of time to file their complaint had to be accompanied by an affidavit of merits or its equivalent.

Fair calculation indicates that in this case the service of the complaint, rejected by the defendant solely for untimeliness, was then but three days late. In opposing plaintiffs’ ensuing CPLR 2004 motion for an extension of time, defendant claimed no prejudice. To routinely insist on a showing of merits under such circumstances would be to impose an unwarranted burden for the curing of an unprejudicing departure.

An accelerated showing of merits is no small thing. This must be done on the affiants’ personal knowledge or, only as permitted in exceptional circumstance, by an acceptable secondary showing (4 Weinstein-Korn-Miller, NY Civ Prac, par 3216.22). Prematurely and before counsel may be fully prepared to do so, it commits the theory of one’s case in greater or lesser detail. Therefore, as every experienced and painstaking lawyer knows, the preparation of appropriate papers may call for an expenditure of professional time and energy akin to that ordinarily reserved, for instance, for such substantive stages of a litigation as a motion for summary judgment, discovery or even the ultimate trial (cf. Siegel, New York Practice, § 281, pp 337-338; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.09).

The imposition of such a stern obligation, no matter how semantically softened, is therefore a more appropriate condition for curing substantial defaults rather than the nonsubstantive, often courtesy-expecting, minor departures which most opposing counsel, sensitive to the practicalities of running a law practice, graciously allow each other as a matter of course. In the end, almost always, this serves reciprocal convenience. It also comports with the now long held liberal goal of the civil practice law and rules “to secure the just, speedy and inexpensive determination” (CPLR 104; see, also, CPLR 2001). As this case, wastefully wending its way all the way through our judicial hierarchy, so well illustrates, resort, instead, to hypertechnical punitive processes also impacts unfavorably on the desirable goal of judicial economy. Such adventures should not receive our encouragement, surely not in the absence of a more telling context. (See, generally, Farrell, Civil Practice, 32 Syracuse L Rev 75, 107.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchsberg concurs in a concurring opinion.

Order affirmed, etc.