Opinion
2012-07-5
MITRANI PLASTERERS CO., INC., respondent, v. SCG CONTRACTING CORP., appellant.
Henry E. Rakowski, Bellmore, N.Y., for appellant. Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Christopher R. Ross of counsel), for respondent.
Henry E. Rakowski, Bellmore, N.Y., for appellant. Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Christopher R. Ross of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, J.), dated October 25, 2011, which denied its motion pursuant to CPLR 3012(b) to dismiss the action for failure to serve a timely complaint and granted the plaintiff's cross motion pursuant to CPLR 3012(d) to compel it to accept the untimely complaint.
ORDERED that the order is affirmed, with costs.
To avoid dismissal of the action for failure to serve a complaint after a demand therefor 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). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court ( see Pristavec v. Galligan, 32 A.D.3d at 834–835, 820 N.Y.S.2d 529). When exercising its discretion in this regard, a court should consider all relevant factors, including the extent of the delay, the prejudice to the opposing party, and the lack of an intent to abandon the action ( see Grace v. Follini, 80 A.D.3d 560, 560–561, 914 N.Y.S.2d 302;Aquilar v. Nassau Health Care Corp., 40 A.D.3d 788, 789, 836 N.Y.S.2d 649;Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 800 N.Y.S.2d 613).
The excuse of law office failure proffered by the plaintiff's attorney was reasonable under the circumstances of this case, given the length of the delay, the lack of prejudice to the defendant, the plaintiff's active participation in a related proceeding brought by the defendant against the plaintiff, and the plaintiff's lack of intent to abandon the action ( seeCPLR 2005; Aquilar v. Nassau Health Care Corp., 40 A.D.3d at 789, 836 N.Y.S.2d 649;Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 574–575, 773 N.Y.S.2d 126). Furthermore, the plaintiff adequately demonstrated the potential merit of its action by attaching a detailed verified complaint and an affidavit from its officer ( seeCPLR 105[u]; Pristavec v. Galligan, 32 A.D.3d at 835, 820 N.Y.S.2d 529). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion to dismiss the action and in granting the plaintiff's cross motion to compel acceptance of the untimely complaint.