IMPERIALE v. PREZIOSO (2004)

In this dismissal motion, the Court must determine whether plaintiffs (Michelina and Leonardo Imperiale) committed a classic act of fatal “lasminutism” by waiting until the last day before the statute of limitations was to expire in their case to commence the action by filling and serving a summons with notice, in lieu of a summons with a complaint, and then waiting two-and-a-half months to serve the complaint, in response to defendants' motion to dismiss for failure to serve the complaint after the demand thereof.

Factual and Procedural Background

This personal injury action stems from an automobile accident that occurred on December 20, 2000.   Reportedly, a car owned by defendant Louis J. Prezioso and operated by defendant Maria T. Prezioso struck a car operated by plaintiff Michelina Imperiale and owned by plaintiff Leonardo Imperiale.   As a result of the accident, plaintiff Michelina Imperiale allegedly suffered serious injuries, including herniated disks of the cervical spine.

Three years later, on December 19, 2003, the last day before the 3-year statute of limitations was to expire in this negligence case, plaintiffs commenced the action by filling and serving a summons with notice, in lieu of a summons and complaint.   Subsequently, on February 23, 2004, defendants appeared in the action by filing and serving a notice of appearance and a demand for a complaint.   When the complaint had not been served two months later, defendants moved to dismiss the action, pursuant to CPLR § 3012(b).

Plaintiffs argue that the dismissal motion has been rendered moot by the service to defendants of a copy of the complaint, in response to the motion.   About two and a half months transpired from the service of the demand and the service of the complaint.   Defendants mailed the demand to plaintiffs on February 23, 2004.   Plaintiffs mailed their complaint to defendants on May 7, 2004.   Defendants, however, argue that the failure to serve the complaint within 20 days of the service of the demand thereof is subject to automatic dismissal, pursuant to CPLR § 3012(b), since plaintiffs failed to submit an affidavit of merit and an excuse for the untimely service of the complaint.   No affidavit of merit from the parties has been provided in opposition to the motion.   Instead, plaintiffs submit a complaint verified by counsel and an affidavit from counsel, providing an excuse for the two-and-a-half-month delay in serving the summons upon defendants.   Counsel for plaintiffs alleges that “[w]hile your affirmant [counsel for plaintiff] does not doubt that defendant did mail a copy of the Notice of Appearance and demand for a Complaint, a review of the file maintained in this office does not show this firm's receipt of the document.”

Discussion

Usually, a plaintiff commences an action by filing and serving a summons and complaint, which shifts the onus to the defendant to serve the answer.   When a plaintiff opts to serve the summons without a complaint, using a Notice under CPLR § 305(b) instead, the onus shifts to a defendant to serve a demand for the complaint on plaintiff's attorney under CPLR § 2103(b).  Defendant should serve such demand within whatever time defendant has to appear.  CPLR § 3012(b).  That would be either a 20-day or 30-day period (or longer) depending on the place and method of service.   See CPLR § 320(a).   See also, Siegel, New York Practice, 2nd Ed., § 231.

 When the summons has been served without a complaint, and the defendant has demanded the complaint, the plaintiff must serve it within 20 days or face dismissal of the action, pursuant to CPLR § 3012(b).  However, where the delay in the service of the complaint is no longer than a few days, the courts readily compel the defendant to accept a complaint untimely served, unless the defendant can show it has been prejudiced by the delay.   See e.g., Hayes v. Berman, 249 A.D.2d 881, 671 N.Y.S.2d 1025 (3rd Dept.1998) (court rejected a motion for dismissal of an action where the complaint was served nine days late and no prejudice resulted in the defendant);  Mills v. Niagara Mohawk Power Corp., 216 A.D.2d 828, 628 N.Y.S.2d 857 (3rd Dept.1995) (same outcome;  six days delay);  Lehigh V.R. Co. v. North American Van Lines, 25 A.D.2d 923, 270 N.Y.S.2d 83 (3rd Dept.1966) (same outcome;  six days delay).

On the other hand, when the delay in serving the complaint is more than a few days, the failure to timely serve is considered a default by the plaintiff and treated as such by the courts.   See e.g., Hommell v. Albany Medical Ctr. Hospital, 209 A.D.2d 772, 617 N.Y.S.2d 991 (3rd Dept.1994) (one month delay);  Manhattan King David Restaurant, Inc. v. Nathanson, 269 A.D.2d 297, 703 N.Y.S.2d 43 (1st Dept.2000) (one-month delay);  Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985) (three-and-a-half-month delay);  De Vito v. Marine Midland Bank, N.A., 100 A.D.2d 530, 473 N.Y.S.2d 218 (2nd Dept.1984) (four-month delay);  Sakvarelidze v. Epstein, 45 A.D.2d 864, 358 N.Y.S.2d 549 (2nd Dept.1974) (four-month delay).   This means that in order to successfully resist the dismissal motion, the plaintiff must offer the traditional two-fold showing of a reasonable excuse for the default and a meritorious claim.   See Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985).

 In the case at bar, it is undisputed that the complaint was served on and promptly rejected as untimely served by defendants when it was served in response to the motion to dismiss, about two-and-a-half months after the demand had been made.   This Court finds no merits to plaintiffs' argument that the motion to dismiss, pursuant to CPLR § 3012(b), is rendered moot by service of the complaint.   Plaintiffs fail to cite any case to support such proposition.   Of course, this is not surprising;  it is well established law that in order to avoid a dismissal for the failure to serve a summons pursuant to CPLR § 3012(b), the plaintiff must set forth a reasonable excuse and a meritorious claim.   See Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985).

 Nor does this Court find a two-and-a-half-month delay a relatively brief delay so as to obviate the duty to demonstrate a reasonable excuse for the delay and a meritorious claim.   Cf. Hommell v. Albany Medical Ctr. Hospital, 209 A.D.2d 772, 617 N.Y.S.2d 991 (3rd Dept.1994) (one-month delay deemed a default);  Manhattan King David Restaurant, Inc. v. Nathanson, 269 A.D.2d 297, 703 N.Y.S.2d 43 (1st Dept.2000) (one month delay deemed a default).   Under the circumstances, prejudice caused by the delay need not be shown by defendants to succeed on their motion.   See Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275 (1980);  Sosis v. 120 Liberty Street Foundation Co., 45 A.D.2d 828, 357 N.Y.S.2d 103 (1st Dept.1974).   The question, therefore, presented here is whether plaintiffs have submitted the necessary proof to preclude a dismissal of the action and to compel defendants to accept a belated service of the complaint.

First, the Court finds that plaintiffs have failed to establish a reasonable excuse for the two-and-a-half-month delay.   As noted above, the excuse proffered by plaintiffs' counsel for serving the complaint late is that, while he “does not doubt that defendant did mail a copy of the Notice of Appearance and demand for a Complaint, a review of the file maintained in [his] office does not show [his] firm's receipt of the document.”   Plaintiffs' counsel's attempt to shift the blame to defendants' counsel is unpersuasive.   If plaintiffs' counsel had a genuine belief that defendants had not appeared in the action by serving a demand, counsel should have been expected to provide a detailed account of the steps taken by counsel for plaintiffs at arriving at such conclusion.   For instance, once the period to respond had expired, plaintiffs could have made an inquiry with defendants or the court as to whether any action had been taken in the case by the adversary.   Indeed, it is common practice, and deemed common courtesy, among attorneys to make such inquiry and allow one another reasonable extension of time to plead.   See Siegel, N.Y. Practice, § 231 (3rd Ed.).   See also, Leff v. Lemonia Restaurant Corp., 187 A.D.2d 252, 589 N.Y.S.2d 444 (1st Dept. 1992).   Significantly, heightened scrutiny was particularly pertinent in this case because of the known fact that any misstep could have had disastrous effects due to the last minute commencement of the action. Under the circumstances, plaintiffs' excuse constitutes, in this Court's view, nothing more than inexcusable office failure.   Cf. Bardales v. Blades, 191 A.D.2d 667, 595 N.Y.S.2d 553 (2nd Dept.1993);  Watson v. New York City Health and Hosp. Corp., 159 A.D.2d 288, 552 N.Y.S.2d 296 (1st Dept.1990).

Secondly, even if plaintiffs were able to convince this Court that the two-and-a-and-half-month delay in submitting the complaint was based upon excusable officer failure, plaintiffs have failed to submit adequate proof of a meritorious claim.   The meritorious claim requirement is satisfied by submitting an affidavit containing evidentiary facts and attested by the individual with personal knowledge of those facts.   See Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985).   Here, however, plaintiffs rely exclusively upon the complaint verified by counsel, which is unsatisfactory since it is not based upon personal knowledge.  Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458.   See also, Schwartz v. National Fire Ins. Co., 25 A.D.2d 727, 268 N.Y.S.2d 749 (1st Dept.1966) (Affidavit should not be a superficial equivalent of a pleading).   Cf. Nitze v. Gallagher, 138 A.D.2d 466, 526 N.Y.S.2d 404 (2nd Dept.1988) (attorney's affidavit based upon information and belief is insufficient);  Nitto v. Kalisiak, 107 A.D.2d 1066, 486 N.Y.S.2d 561 (4th Dept.1985) (same).

Conclusion

This Court is mindful of the fact that a dismissal of this action would constitute a coup de grace to plaintiffs' claim against defendants.   Not only has the statute of limitations expired in the case, but plaintiffs would not get the six-months extension offered by CPLR § 205(b) (provided when a dismissal is not on the merits);  a dismissal pursuant CPLR § 3012(b) is outside the ambit of CPLR § 205(b), as constituting a dismissal for failure to prosecute.   See Schwartz v. Luks, 46 A.D.2d 634, 359 N.Y.S.2d 899 (1st Dept.1974);  Wright v. Farlin, 42 A.D.2d 141, 346 N.Y.S.2d 11 (3rd Dept.1973).   Although the trial courts enjoy considerable latitude in determining whether to dismiss an action pursuant to CPLR § 3012(b), see Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275 (1980), the courts are bound to unconditionally dismiss an action if a plaintiff fails to demonstrate a reasonable excuse for her delay and establish a meritorious nature of her claim.   See Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985).   On the record presented here, this Court finds that plaintiffs failed in all respects to meet their burden.   Cf. Kel Management Corp. v. Rogers & Wells, 64 N.Y.2d 904, 488 N.Y.S.2d 156, 477 N.E.2d 458 (1985);  Bardales v. Blades, 191 A.D.2d 667, 595 N.Y.S.2d 553 (2nd Dept.1993).   This Court is, therefore, constrained by CPLR § 3012(b) and applicable case law to dismiss the action.

For the foregoing reasons, it is hereby

ORDERED that the motion by defendants Maria T. Prezioso and Louis J. Prezioso is granted and the claims against them are hereby dismissed pursuant to CPLR § 3012(b).

This constitutes the Decision and Order of the Court.

DIANNE T. RENWICK, J.