NORRISH v. PACINI (2006)

Appeal from an order of the Supreme Court (Ceresia Jr., J.), entered February 16, 2005 in Rensselaer County, which, inter alia, denied defendant's motion to dismiss the complaint.

This negligence action was commenced against defendant to recover alleged damages for personal injuries arising out of an automobile accident.   After service of a summons with notice, defendant served a notice of appearance and demand for complaint.   Plaintiff neglected to timely serve the complaint prompting a defense motion to dismiss pursuant to CPLR 3012(b).  Plaintiff cross-moved for an extension of time to serve her complaint and included therewith a proposed verified complaint and affidavit of merit.   Defendant now appeals from an order of Supreme Court denying his motion and granting plaintiff's cross motion.

 We affirm as we are unable to conclude that Supreme Court abused its considerable discretion in denying defendant's motion to dismiss this action based upon plaintiff's failure to serve a complaint (see Porter v. Beaulieu, 282 A.D.2d 980, 723 N.Y.S.2d 713 [2001];  Skrabalak v. Finn, 258 A.D.2d 719, 720, 684 N.Y.S.2d 679 [1999] ).   It is well settled that in order to avoid dismissal under CPLR 3012(b), a plaintiff must “ ‘demonstrate both a meritorious cause of action and a reasonable excuse for the delay’ ” (Greater Amsterdam School Dist. v. International Fid. Ins. Co., 285 A.D.2d 944, 944, 727 N.Y.S.2d 831 [2001], quoting Rios v. Skaters World Roller Rink, 246 A.D.2d 882, 882, 667 N.Y.S.2d 821 [1998];  see Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904, 905, 488 N.Y.S.2d 156, 477 N.E.2d 458 [1985];  Amodeo v. Gellert & Quartararo, 26 A.D.3d 705, 810 N.Y.S.2d 246 [2006] ).   In our view, plaintiff established both.

First, plaintiff's affidavit, wherein she details the circumstances surrounding the parties' automobile accident and her resulting injuries, provides sufficient first-hand evidence of a meritorious claim (see Porter v. Beaulieu, supra;  cf. Amodeo v. Gellert & Quartararo, supra ).   Moreover, she offered a reasonable excuse for the relatively short delay, namely, law office failure (see Bellcourt v. Bellcourt, 169 A.D.2d 855, 855-856, 564 N.Y.S.2d 580 [1991];  see also CPLR 2005;  see generally Braswell v. Schaffler, 12 A.D.3d 474, 784 N.Y.S.2d 643 [2004];  Gagen v. Kipany Prods., 6 A.D.3d 963, 775 N.Y.S.2d 202 [2004] ).   Thus, we affirm Supreme Court's order.

ORDERED that the order is affirmed, with costs.

CARDONA, P.J., CREW III, SPAIN and LAHTINEN, JJ., concur.

CARPINELLO, J.