Opinion
Index 153505/2021
10-25-2021
ARIANA ZELAYA, Plaintiff, v. EDWARD IRIZARRY, Defendant. Motion Seq. No. 001
DATE DAVID B. COHEN, J.S.C.
Unpublished Opinion
DECISION + ORDER ON MOTION
DATE DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 10, 11 were read on this motion to/for DISMISSAL.
Defendant Edward Irizarry moves to dismiss this personal injury action commenced by plaintiff Ariana Zelaya. Plaintiff opposes the motion. After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff commenced the captioned action by filing a summons with notice on April 9, 2021. Doc. 1. On June 28, 2021, defendant served a demand for a complaint pursuant to CPLR 3012(b). Doc. 3. However, plaintiff did not file a complaint until August 9, 2021, on which date defendant immediately rejected the same. Doc. 8.
In July, 2021, defendant filed the instant motion to dismiss the action on the ground that plaintiff failed to serve the complaint within 20 days after his demand, as required by CPLR 3012(b). Docs. 4-5.
Plaintiff opposes the motion in cursory fashion, asserting that it is moot because the complaint was served after defendant's motion was filed. Doc. 10. Additionally, plaintiff claims that "[t]he reason the complaint was not filed earlier was law office failure, which [she] asks the court to excuse." Doc. 10.
In reply, defendant argues that his motion must be granted since plaintiff failed to move for an extension of time to serve the complaint pursuant to CPLR 3012(d) and does not ask for such an extension of time in her papers. Doc. 11. He further asserts that plaintiff failed to establish a meritorious claim and reasonable excuse for her default. Id.
LEGAL CONCLUSIONS
It is well settled that a party who commences an action by service of a summons with notice and fails to serve a complaint within 20 days of a demand therefor must demonstrate the merits of his or her action and a reasonable excuse for the delay in order to avoid dismissal (See CPLR 3012[d]; Barasch v Micucci, 49 N.Y.2d 594, 599 [1980]; Gear Up, Inc. v City of New York, 140 A.D.3d 515 [1st Dept 2016]; Nolan v Lechner, 60 A.D.3d 473 [1st Dept 2009]). "[T]he decision as to what constitutes a reasonable excuse ordinarily lies within the sound discretion of the trial court" (Barasch, 49 N.Y.2d at 599).
Plaintiffs unsubstantiated and utterly conclusory claim of law office failure does not constitute a reasonable excuse for her failure to serve a complaint (See Okun v Tanners, 11 N.Y.3d 762, 763-764 [2008]; see also Galaxy Gen. Contr. Corp. v 22017th Ave. Realty LLC, 95 A.D.3d 789, 790 [1st Dept 2012] ["claims of law office failure which are 'conclusory and unsubstantiated' cannot excuse default"] [citations omitted]).
Since plaintiff has failed to set forth a reasonable excuse for her failure to serve a complaint, it is not necessary to consider whether she has a meritorious claim (See Deutsche Bank Natl. Trust Co. v Kuldip, 136 A.D.3d 969, 969 [2d Dept 2016]). In any event, however, plaintiff has failed to submit an affidavit of merit (See Kel Management Corp. v Rogers & Wells, 64 N.Y.2d 904, 905 [ 1985]; Caruso v International House of Pancakes, 228 A.D.2d 462 [2d Dept 1996]). Additionally, although a verified complaint may be submitted to establish a meritorious claim (see Stevens v Stevens, 165 A.D.2d 780 [1st Dept 1990]), and plaintiff asserts that she has filed a verified complaint (Doc. 10 at par. 3) the complaint filed is clearly unverified. Doc. 8.
Finally, as defendant asserts, plaintiff did not cross-move, pursuant to CPLR 3012(d), to extend her time to file a complaint or to compel defendant to accept her untimely complaint nunc pro tunc. Therefore, this Court is constrained to dismiss the complaint, although it notes that such dismissal is not on the merits (see Samuels v Rosenberg, 178 A.D.2d 639 [2d Dept 1991]) and so plaintiff may refile the action should she be so advised.
Accordingly, it is hereby:
ORDERED that the motion by defendant Edward Irizarry to dismiss the complaint is granted, and the complaint is dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that counsel for defendant shall serve a copy of this order, with notice of entry, upon the Clerk of the Court (60 Centre Street, Room 14IB) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark this Court's records to reflect the dismissal and enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" [**36] page on the court's website at the address www.nycourts.gov/supctmanh).