Opinion
2015-05-08
Shneika M. ROBERTS, Plaintiff–Respondent, v. Elvira A. NORTHINGTON and Jetuana Moody, Defendants–Appellants.
Law Office of John Wallace, Rochester (Alyson Culliton of Counsel), for Defendant–Appellant Elvira A. Northington. Adams, Hanson, Rego, Kaplan & Fishbein, Williamsville (Nicole Palmerton of Counsel), for Defendant–Appellant Jetuana Moody.
Law Office of John Wallace, Rochester (Alyson Culliton of Counsel), for Defendant–Appellant Elvira A. Northington. Adams, Hanson, Rego, Kaplan & Fishbein, Williamsville (Nicole Palmerton of Counsel), for Defendant–Appellant Jetuana Moody.
Frank S. Falzone, Buffalo (Louis Rosado of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DeJOSEPH, JJ.
MEMORANDUM:
In this negligence action arising from a motor vehicle accident, defendants appeal from an order granting plaintiff's motion pursuant to CPLR 5015 to vacate the orders dismissing the action based on plaintiff's failure to serve a complaint within 20 days of defendants' demand pursuant to CPLR 3012(b). “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] ). We agree with defendants that Supreme Court abused its discretion in granting plaintiff's motion because plaintiff failed to establish that she has a meritorious cause of action, i.e., she failed to submit an “affidavit of merit containing evidentiary facts sufficient to establish a prima facie case” ( Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458), or a verified complaint ( see McIntosh v. Genesee Val. Laser Ctr., 121 A.D.3d 1560, 1561, 993 N.Y.S.2d 844). Here, in support of her motion, plaintiff submitted only the affirmation of her attorney, who has no personal knowledge of the relevant facts, and plaintiff thus failed to meet her burden ( see Oversby v. Linde Div. of Union Carbide Corp., 121 A.D.2d 373, 373, 503 N.Y.S.2d 85). Although plaintiff thereafter submitted a verified complaint, she improperly did so for the first time in her reply papers ( see generally James C. v. Cintron, 126 A.D.3d 464, 464, 2 N.Y.S.3d 786; Jackson–Cutler v. Long, 2 A.D.3d 590, 590, 768 N.Y.S.2d 360). We conclude that “[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 ..., and it [was] reversible error for the court to hold otherwise” ( McIntosh, 121 A.D.3d at 1561–1562, 993 N.Y.S.2d 844 [internal quotation marks omitted] ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.