Opinion
38 CA 18–01511
02-01-2019
Joseph BITTINGER, Jr. and Linda Bittinger, Plaintiffs–Respondents, v. ERIE INSURANCE COMPANY, Defendant–Appellant.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JAMES GRABER OF COUNSEL), FOR DEFENDANT–APPELLANT. THE WESTMAN LAW FIRM, JAMESTOWN (JAMES E. WESTMAN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JAMES GRABER OF COUNSEL), FOR DEFENDANT–APPELLANT.
THE WESTMAN LAW FIRM, JAMESTOWN (JAMES E. WESTMAN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the action is dismissed.
Memorandum: Defendant appeals from an order denying its motion, inter alia, to dismiss the action based on plaintiffs' failure to timely comply with defendant's demand for service of a complaint pursuant to CPLR 3012(b). We agree with defendant that Supreme Court erred in denying the motion. It is well settled that, "[t]o avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made 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" ( Berges v. Pfizer, Inc., 108 A.D.3d 1118, 1119, 969 N.Y.S.2d 657 [4th Dept. 2013] [internal quotation marks omitted]; see McIntosh v. Genesee Val. Laser Ctr., 121 A.D.3d 1560, 1560, 993 N.Y.S.2d 844 [4th Dept. 2014], lv denied 25 N.Y.3d 911, 2015 WL 3618883 [2015] ; Dunlop v. Saint Leo the Great R.C. Church, 109 A.D.3d 1120, 1120–1121, 971 N.Y.S.2d 759 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 2013 WL 6596954 [2013] ). Here, even assuming, arguendo, that plaintiffs showed a meritorious cause of action, we conclude that they failed to provide any excuse for the delay in serving their complaint, and thus dismissal of the action is required (see JL Collier Corp. v. Wells Fargo Bank, N.A., 127 A.D.3d 1026, 1027, 5 N.Y.S.3d 884 [2d Dept. 2015] ; Dunlop, 109 A.D.3d at 1121, 971 N.Y.S.2d 759 ; Fasano v. J.C. Penney Corp., 59 A.D.3d 1102, 1102, 872 N.Y.S.2d 613 [4th Dept. 2009] ). Plaintiffs' contention that defendant has not been prejudiced or harmed by the delay is irrelevant. "The absence of any reasonable excuse for plaintiffs' delay is determinative; there is no requisite that prejudice be shown before a motion to dismiss is granted in a case of this nature" ( Verre v. Rosas, 47 N.Y.2d 795, 796, 417 N.Y.S.2d 929, 391 N.E.2d 1010 [1979] ).