Opinion
13648 Index No. 150124/17 Case No. 2020-02991
04-22-2021
Erna De Saint George ELKAIM, Plaintiff–Appellant, v. LOTTE NEW YORK PALACE HOTEL et al., Defendants–Respondents.
Mischel & Horn P.C., New York (Lauren E. Bryant of counsel), for appellant. Litchfield Cavo LLP, New York (Nadia Del Toro of counsel), for Lotte New York Palace Hotel and Francesca Pirrone, respondents. James E. Johnson, Corporation Counsel, New York (Ellen Ravitch of counsel), for The Ciity of New York, respondent.
Mischel & Horn P.C., New York (Lauren E. Bryant of counsel), for appellant.
Litchfield Cavo LLP, New York (Nadia Del Toro of counsel), for Lotte New York Palace Hotel and Francesca Pirrone, respondents.
James E. Johnson, Corporation Counsel, New York (Ellen Ravitch of counsel), for The Ciity of New York, respondent.
Acosta, P.J., Renwick, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Verna L. Saunders, J.), entered October 7, 2019, which denied plaintiff's cross motion permitting service of her complaint nunc pro tunc pursuant to CPLR 3012(d), and granted defendants' motions to dismiss the complaint pursuant to CPLR 3012(b), unanimously affirmed, without costs.
Plaintiff failed to set forth a reasonable excuse for her approximately 18–month–delay in serving her complaint (see Gear Up, Inc. v. City of New York, 140 A.D.3d 515, 34 N.Y.S.3d 17 [1st Dept. 2016] ; see also Trokaik Realty, Inc. v. HP Yuco, HDFC, Inc., 188 A.D.3d 1281, 1282, 132 N.Y.S.3d 796 [2d Dept. 2020] ). While her counsel attributed the delay to a paralegal's failure to calendar the deadline to serve the complaint before the paralegal left the firm in December 2017, the deadline to serve and file the complaint was months before then. Moreover, counsel never explained why he failed to file a complaint despite having received two similar demands for one a month apart. Given the inordinate delay, and lack of any adequate explanation for the delay, plaintiff's reliance on law office failure was properly rejected (see Hertz Vehs. LLC v. Westchester Radiology & Imaging, PC, 161 A.D.3d 550, 77 N.Y.S.3d 393 [1st Dept. 2018] ; Pichardo–Garcia v. Josephine's Spa Corp., 91 A.D.3d 413, 414, 936 N.Y.S.2d 27 [1st Dept. 2012] ).
Plaintiff's out-of-state residency in Florida is insufficient to justify the delay, as she had voluntarily removed herself from the court's jurisdiction and failed to maintain adequate communication with her own counsel (see Martinez v. Belanger, 186 A.D.2d 40, 587 N.Y.S.2d 642 [1st Dept. 1992], affd 82 N.Y.2d 672, 601 N.Y.S.2d 566, 619 N.E.2d 644 [1993] ). Any claim of impairment in communication due to her out-of-state residency is unacceptable, especially in view of the availability of technology (see Caton v. Schenectady Gazette, 82 A.D.2d 949, 440 N.Y.S.2d 760 [3d Dept. 1981] ). Plaintiff's claim that an ongoing illness impeded her filing of a complaint is unsupported by any evidentiary showing, including a medical affidavit (see id. ).
Given plaintiff's failure to establish a reasonable excuse for her lengthy delay in serving the complaint, this Court need not reach the issue of whether plaintiff established a potentially meritorious claim (see Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 A.D.3d 475, 41 N.Y.S.3d 29 [1st Dept. 2016] ). In any event, we have reviewed her contentions and find them unavailing.