FASANO v. PENNEY CORPORATION (2009)

Defendant appeals from an order denying its motion to dismiss the action based on the failure of plaintiff to comply with defendant's demand for service of a complaint pursuant to CPLR 3012(b).  We agree with defendant that Supreme Court erred in denying the motion.  “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” (Kordasiewicz v. BCC Prods., Inc., 26 A.D.3d 853, 854, 809 N.Y.S.2d 748).   Here, plaintiff failed to provide any excuse for the delay (see Moreno v. Shell Oil Co., 67 A.D.2d 905, 413 N.Y.S.2d 173), and she failed to demonstrate that she has a meritorious cause of action (see Kordasiewicz, 26 A.D.3d at 855, 809 N.Y.S.2d 748).   Thus, “it was error, as a matter of law, not to grant the motion to dismiss without condition” (Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458;  see Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 468 N.Y.S.2d 460, 455 N.E.2d 1255).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the action is dismissed.

MEMORANDUM: