Miraglia v. County of Nassau

Jun 10, 2002
Versions:295 A.D.2d 411
743 N.Y.S.2d 722
2002 N.Y. App. Div. LEXIS 5979

—In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, J.), dated June 27, 2001, which denied their motion pursuant to CPLR 3012 (b) to dismiss the action on the ground that the plaintiff failed to timely serve the complaint.

Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the action is dismissed.

The Supreme Court improvidently exercised its discretion in denying the defendants’ motion pursuant to CPLR 3012 (b) to dismiss the action on the ground that the plaintiff failed to timely serve the complaint. In opposing the motion, the plaintiff was required to demonstrate, inter alia, a reasonable excuse for the delay in serving the complaint 3V2 years after it was due (see CPLR 3012 [b]; Goldstein v Lopresti, 284 AD2d 497; Elbaz v Lieb, 269 AD2d 489; Tolliver v County of Nassau, 231 AD2d 708; Weiss v Kahan, 209 AD2d 611). The excuses proffered, that the attorney in charge of the plaintiffs action ceased her employment on an unspecified date at the law firm retained by the plaintiff and that there were ongoing settlement negotiations, are unsupported by the record and unreasonable under the circumstances presented here. Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.