Opinion
2014-10-3
John A. McINTOSH, Plaintiff–Appellant, v. GENESEE VALLEY LASER CENTRE and Holly B. Hahn, M.D., Defendants–Respondents.
John A. McIntosh, Plaintiff-Appellant Pro Se. Hirsch & Tubiolo, P.C., Rochester (Bryan Kornfield of Counsel), for Defendants–Respondents.
John A. McIntosh, Plaintiff-Appellant Pro Se. Hirsch & Tubiolo, P.C., Rochester (Bryan Kornfield of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, and DeJOSEPH, JJ.
MEMORANDUM:
Plaintiff appeals from an order granting defendants' motion to dismiss the action based on the failure of plaintiff to comply with their demand for service of a complaint pursuant to CPLR 3012 (b). We affirm. “To 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 [internal quotation marks omitted] ).
“It is generally within the sound discretion of [Supreme Court] to determine what constitutes a reasonable excuse for the delay in serving the complaint” (Mitchell v. Erie County Med. Ctr. Corp., 70 A.D.3d 1408, 1408–1409, 893 N.Y.S.2d 921, lv. dismissed14 N.Y.3d 881, 903 N.Y.S.2d 336, 929 N.E.2d 399 [internal quotation marks omitted]; see Kordasiewicz v. BCC Prods., Inc., 26 A.D.3d 853, 854, 809 N.Y.S.2d 748). Here, defendants served plaintiff with a demand for service of a complaint one week after plaintiff served defendants with a summons with notice. Upon plaintiff's failure to serve a complaint by the applicable deadline ( seeCPLR 3012[b]; see alsoCPLR 2103[b][2] ), defendants moved to dismiss the action pursuant to CPLR 3012(b). We conclude that plaintiff failed to provide any reasonable excuse for the delay ( see generally Fasano v. J.C. Penney Corp., 59 A.D.3d 1102, 1102, 872 N.Y.S.2d 613). Plaintiff's contention that he served a complaint upon defendants' attorney by mail is unsubstantiated by the record, and plaintiff's reliance in his reply brief on purported conversations between himself and defendants' attorney to support his contention that he served a complaint is improper inasmuch as such conversations are outside the record on appeal ( see Britt v. Buffalo Mun. Hous. Auth., 109 A.D.3d 1195, 1197, 972 N.Y.S.2d 381). Plaintiff failed to establish at a court appearance that he filed or served a complaint, and his claims concerning such filing or service are belied by a subsequent letter in which he requested permission from the court to serve a late complaint upon defendants' attorney. Moreover, the record contains neither a copy of the alleged complaint nor proof of service ( cf. Dunlop v. Saint Leo the Great R.C. Church, 109 A.D.3d 1120, 1121, 971 N.Y.S.2d 759, lv. denied22 N.Y.3d 858, 2013 WL 6596954). Plaintiff asserts in his reply brief that the record on appeal failed to include the “original complaint,” which he alleges was attached to a second handwritten letter that he faxed to the court. Even assuming, arguendo, that plaintiff's assertion is accurate and properly before us, it is the obligation of the appellant to assemble a proper record on appeal ( see22 NYCRR 1000.4[a]; Mergl v. Mergl, 19 A.D.3d 1146, 1147, 796 N.Y.S.2d 823; see alsoCPLR 5526). Plaintiff, the appellant herein, “ ‘submitted this appeal on an incomplete record and must [therefore] suffer the consequences' ” (Polyfusion Electronics, Inc. v. AirSep Corp., 30 A.D.3d 984, 985, 816 N.Y.S.2d 783).
In any event, we conclude that plaintiff failed to establish a meritorious cause of action. “A meritorious cause of action may be established by way of ‘an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case’ ” (Berges, 108 A.D.3d at 1119, 969 N.Y.S.2d 657, quoting Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458; see Tonello v. Carborundum Co., 91 A.D.2d 1169, 1170, 459 N.Y.S.2d 138, affd. 59 N.Y.2d 720, 463 N.Y.S.2d 425, 450 N.E.2d 231, rearg. denied 60 N.Y.2d 587, 467 N.Y.S.2d 1031, 454 N.E.2d 127), or with a verified complaint ( see Berges, 108 A.D.3d at 1119, 969 N.Y.S.2d 657; see alsoCPLR 105[u]; A & J Concrete Corp. v. Arker, 54 N.Y.2d 870, 872, 444 N.Y.S.2d 905, 429 N.E.2d 412; Kordasiewicz, 26 A.D.3d at 855, 809 N.Y.S.2d 748). Here, plaintiff submitted neither. Plaintiff's assertion in his reply brief that he recently obtained assurances that his action is meritorious from the doctor who diagnosed and treated his condition is not properly before us because those alleged assurances are outside the record on appeal and, in any event, do not constitute an affidavit of merit. “[P]laintiff['s] failure to demonstrate the merit of [the cause of action] in response to the CPLR 3012(b) motion ... compels the unconditional dismissal of [the] action” (Kordasiewicz, 26 A.D.3d at 855, 809 N.Y.S.2d 748 [internal quotation marks omitted] ), and it would have been reversible error for the court to hold otherwise ( see Kel Mgt. Corp., 64 N.Y.2d at 905, 488 N.Y.S.2d 156, 477 N.E.2d 458; Fasano, 59 A.D.3d at 1102, 872 N.Y.S.2d 613).
Finally, to the extent plaintiff contends that the court erred in denying his request for an additional adjournment, we conclude that the court did not abuse or improvidently exercise its discretion ( see Pitts v. City of Buffalo, 19 A.D.3d 1030, 1030, 796 N.Y.S.2d 286).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.