HAYGOOD v. Dr. William W. Cotanch, Appellant. (1998)

 Supreme Court properly denied the motion of Dr. William W. Cotanch (defendant) to dismiss the complaint pursuant to CPLR 3012(b).   It is undisputed that plaintiff did not serve the complaint within 20 days of defendant's demand.   Plaintiff established, however, that a copy of the complaint was mailed to defendant's attorney on March 25, 1997 pursuant to CPLR 2103(b)(2) and that defendant did not move to dismiss the complaint until April 24, 1997.   Defendant's “retention of the complaint was a waiver of the untimely service thereof and deprived defendant of the right to relief under CPLR 3012” (Lucenti v. City of Buffalo, 29 A.D.2d 833, 834, 287 N.Y.S.2d 612;  see, Riesenberg v. Bachrach, 160 A.D.2d 1190, 555 N.Y.S.2d 201).   The properly executed certificate of mailing “raises a presumption that a proper mailing occurred” (Engel v. Lichterman, 62 N.Y.2d 943, 944, 479 N.Y.S.2d 188, 468 N.E.2d 26), and that presumption is not rebutted by the denial of receipt by defendant's attorney (see, Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829-830, 414 N.Y.S.2d 117, 386 N.E.2d 1085;  St. Clare's Hosp. v. Allcity Ins. Co., 201 A.D.2d 718, 719, 608 N.Y.S.2d 325).

Order unanimously affirmed without costs.

MEMORANDUM: