Opinion
June 29, 1993
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
To successfully oppose defendant's motion to dismiss plaintiff's action for failure to timely serve a complaint, plaintiff must demonstrate a reasonable excuse for its delay and establish the meritorious nature of its claim (Young v. Bassett Hosp., 190 A.D.2d 905). Here, plaintiff has failed to meet its burden. Plaintiff's complaint, seeking reformation of a contract, was properly dismissed as it failed to meet the heavy burden of establishing mutual mistake or unilateral mistake coupled with fraud in connection with a 1984 agreement between the parties concerning the nature of certain design/construction defects and the establishment of a fund to pay the repair costs up to $1,000,000 (see, Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 29, lv dismissed 80 N.Y.2d 1005). Furthermore, plaintiff failed to introduce evidence in admissible form tending to prove that the money set aside for the repair work was used for something other than the stated purpose, or that said fund was improperly spent, or that the benefits were not received by plaintiff.
Concur — Carro, J.P., Ellerin, Rubin and Nardelli, JJ.