Opinion
2012-06-6
Naima DAYAN, appellant, v. Gary M. DARCHE, etc., respondent.
David H. Singer, New York, N.Y. (Steven G. Shakhnevich of counsel), for appellant. Gordon & Rees LLP, New York, N.Y. (Robert Modica of counsel), for respondent.
David H. Singer, New York, N.Y. (Steven G. Shakhnevich of counsel), for appellant. Gordon & Rees LLP, New York, N.Y. (Robert Modica of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Weiss, J.), dated May 2, 2011, which granted the defendant's motion, in effect, pursuant to CPLR 3012(b) to dismiss the action, and (2) an order of the same court dated January 4, 2012, which denied her motion for leave to renew her opposition to the defendant's motion.
ORDERED that the orders are affirmed, with one bill of costs.
To avoid dismissal of the action for failure to 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 potentially meritorious cause of action ( see Perez–Faringer v. Heilman, 79 A.D.3d 837, 838, 912 N.Y.S.2d 418;Gibbons v. Court Officers' Benevolent Assn. of Nassau County, 78 A.D.3d 654, 654, 909 N.Y.S.2d 917;Pristavec v. Galligan, 32 A.D.3d 834, 834, 820 N.Y.S.2d 529;Maldonado v. Suffolk County, 23 A.D.3d 353, 353–354, 803 N.Y.S.2d 439). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action ( see generally Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553;Allen v. Potruch, 282 A.D.2d 484, 484–485, 723 N.Y.S.2d 101;Iannacone v. Weidman, 273 A.D.2d 275, 276–277, 708 N.Y.S.2d 723;Rubinberg v. Walker, 252 A.D.2d 466, 467, 676 N.Y.S.2d 149). Accordingly, the Supreme Court properly granted the defendant's motion to dismiss the action.
In addition, the plaintiff's motion for leave to renew her opposition to the defendant's motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney's affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney's affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination ( see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v. B.R. Fries & Assoc., Inc., 83 A.D.3d 645, 646, 919 N.Y.S.2d 873;Mattera v. Capric, 54 A.D.3d 827, 828, 864 N.Y.S.2d 98;Borgia v. Interboro Gen. Hosp., 90 A.D.2d 531, 455 N.Y.S.2d 97,affd.59 N.Y.2d 802, 464 N.Y.S.2d 736, 451 N.E.2d 483;Wolfe v. Town of Hempstead, Dept. of Parks & Recreation, 75 A.D.2d 811, 812, 427 N.Y.S.2d 490). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition to the defendant's original motion ( seeCPLR 2221[e][3]; Brown Bark I, L.P. v. Imperial Dev. & Constr. Corp., 65 A.D.3d 510, 512, 882 N.Y.S.2d 919;Zarecki & Assoc., LLC v. Ross, 50 A.D.3d 679, 680, 854 N.Y.S.2d 527;Reshevsky v. United Water N.Y., Inc., 46 A.D.3d 532, 533, 846 N.Y.S.2d 616).