GIORDANO v. VANCHIERI PERRIER (2005)

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Owen, J.), dated March 16, 2004, which granted the defendants' motion to dismiss the action pursuant to CPLR 3012(b).

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

 To avoid dismissal for failure to serve a complaint after a demand therefor has been served 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 (see Tutora v. Schirripa, 1 A.D.3d 349, 766 N.Y.S.2d 574;  Balgley v. Cammarata, 299 A.D.2d 432, 749 N.Y.S.2d 732;  Chmielnik v. Rosenberg, 269 A.D.2d 555, 703 N.Y.S.2d 754).   The plaintiff demonstrated a reasonable excuse for his brief delay in serving a complaint, based upon an innocent misunderstanding by his attorney as to the length of the adjournment admittedly granted by opposing counsel (see Hospital for Joint Diseases v. ELRAC, Inc., 11 A.D.3d 432, 783 N.Y.S.2d 612;  Weekes v. Karayianakis, 304 A.D.2d 561, 758 N.Y.S.2d 117).

 Furthermore, contrary to the Supreme Court's conclusion, the plaintiff demonstrated, prima facie, the merit of his legal malpractice claim.   The defendants allegedly failed to raise the governing former six-year statute of limitations (see Tauber v. Lebow, 65 N.Y.2d 596, 493 N.Y.S.2d 1008, 483 N.E.2d 1140;  Welch v. Welch, 130 A.D.2d 656, 515 N.Y.S.2d 587;  cf. CPLR 211[e];  Matter of Eberhardt v. Monroe County Child Support Enforcement Unit, 2 A.D.3d 1344, 769 N.Y.S.2d 416;  Shavit v. Shavit, 279 A.D.2d 180, 719 N.Y.S.2d 2;  Thurmond v. Thurmond, 155 A.D.2d 527, 547 N.Y.S.2d 385) in opposition to the proceeding by the plaintiff's former wife to recover support arrears payable pursuant to their 1985 judgment of divorce (see Matter of Giordano v. Giordano, 289 A.D.2d 238, 734 N.Y.S.2d 483).   But for this alleged omission, the plaintiff could have avoided significant arrears accruing from years beyond the limitations period (cf. Van Buren v. Worby Borowick Groner, LLP, 9 A.D.3d 276, 779 N.Y.S.2d 484;  Keeley v. Tracy, 301 A.D.2d 501, 753 N.Y.S.2d 141).

The defendants' remaining contentions are without merit.