Giordano v. Vanchieri & Perrier

Mar 28, 2005
Versions:16 A.D.3d 621
792 N.Y.S.2d 180
2005 N.Y. App. Div. LEXIS 3309

Joseph Giordano, Appellant, v VANCHIERI & PERRIER et al., Respondents. [792 NYS2d 180]—

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Owen, J.), dated March 16, 2004, which granted the defendants’ motion to dismiss the action pursuant to CPLR 3012 (b).

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

To avoid dismissal for failure to serve a complaint after a 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]; Balgley v Cammarata, 299 AD2d 432 [2002]; Chmielnik v Rosenberg, 269 AD2d 555 [2000]). The plaintiff demonstrated a reasonable excuse for his brief delay in serving a complaint, based upon an innocent misunderstanding by his attorney as to the length of the adjournment admittedly granted by opposing counsel (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]; Weekes v Karayianakis, 304 AD2d 561 [2003]).

Furthermore, contrary to the Supreme Court’s conclusion, the plaintiff demonstrated, prima facie, the merit of his legal malpractice claim. The defendants allegedly failed to raise the governing former six-year statute of limitations (see Tauber v Lebow, 65 NY2d 596 [1985]; Welch v Welch, 130 AD2d 656 [1987]; cf. CPLR 211 [e]; Matter of Eberhardt v Monroe County Child Support Enforcement Unit, 2 AD3d 1344 [2003]; Shavit v Shavit, 279 AD2d 180 [2000]; Thurmond v Thurmond, 155 AD2d 527 [1989]) in opposition to the proceeding by the plaintiff’s former wife to recover support arrears payable pursuant to their 1985 judgment of divorce (see Matter of Giordano v Giordano, 289 AD2d 238 [2001]). But for this alleged omission, the plaintiff could have avoided significant arrears accruing from years beyond the limitations period (cf. Van Buren v Worby Borowick Groner, LLP, 9 AD3d 276 [2004]; Keeley v Tracy, 301 AD2d 501 [2003]).

The defendants’ remaining contentions are without merit.

Florio, J.P., H. Miller, Cozier and S. Miller, JJ., concur.