Opinion
March 4, 1988
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, defendant's motion granted, and plaintiff's cross motion denied. Memorandum: The court erred in denying defendant's motion to dismiss the complaint and granting plaintiff's cross motion for an order compelling acceptance of the untimely served verified complaint. The parties were married on July 12, 1962. On June 3, 1987 plaintiff served a summons and notice for divorce premised on the ground of cruel and inhuman treatment. A demand for a complaint was served by defendant on June 12, 1987. By motion returnable on October 5, 1987, defendant moved to dismiss the action for failure to serve a complaint (CPLR 3012 [b]). In response to the motion, plaintiff essentially argued law office failure and requested an extension of time to serve the pleading. On September 29, 1987 plaintiff served a verified complaint which was returned by defendant's counsel as untimely. Plaintiff then cross-moved, seeking an order directing acceptance of the complaint (CPLR 3012 [d]).
A party seeking an extension of time to serve a pleading under CPLR 3012 (d) is statutorily required to show reasonable excuse for the delay or default but has no obligation to demonstrate merit (see, Ching v. Ching, 125 A.D.2d 934). The Court of Appeals has made it clear, however, that "a party opposing a CPLR 3012 (b) motion to dismiss based upon law office failure is obligated 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, citing Canter v. Mulnick, 60 N.Y.2d 689.) Although plaintiff failed to submit such an affidavit, we may review his verified complaint as a substitute (see, CPLR 105 [t]).
It is well settled that a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct on the part of defendant and not mere incompatibility or irreconcilable differences between the parties (Hessen v Hessen, 33 N.Y.2d 406). "Ordinarily what is required is a showing of a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper (Buckley v. Buckley, 93 A.D.2d 973) " (Kleindinst v. Kleindinst, 116 A.D.2d 988; accord, Stagliano v. Stagliano, 132 A.D.2d 975; Green v. Green, 127 A.D.2d 983). Further, a higher degree of proof is required where the marriage is one of long duration (Brady v. Brady, 64 N.Y.2d 339; Hessen v. Hessen, supra).
Here, the allegations of the complaint fail to show serious misconduct on the part of defendant and fail to demonstrate in evidentiary form that continued cohabitation would be "unsafe or improper" (Domestic Relations Law § 170). Accordingly, the motion to dismiss should have been granted because plaintiff failed to demonstrate merit (Kel Mgt. Corp. v. Rogers Wells, supra). It follows that plaintiff's cross motion to compel acceptance of service of the complaint must be denied.