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Howard LEIBOWITZ, respondent, v. Bruce GLICKMAN, appellant.
In an action to recover damages for assault and battery, the defendant appeals from an order of Supreme Court, Nassau County (Adams, J.), entered May 25, 2007, which denied that branch of his motion which was pursuant to CPLR 3012(b) to dismiss the action based upon the plaintiff's failure to timely serve a complaint and granted the plaintiff's cross motion, in effect, to compel him to accept an untimely complaint.
ORDERED that the order is reversed, on the law, with costs, that branch of the defendant's motion which was pursuant to CPLR 3012(b) to dismiss the action based upon the plaintiff's failure to timely serve a complaint is granted, and the cross motion is denied.
To avoid dismissal for failure to timely serve a complaint after a demand therefor has been served pursuant to CPLR 3012(b), a plaintiff must demonstrate a reasonable excuse for the delay in serving the complaint and a meritorious cause of action (see Aquilar v. Nassau Health Care Corp., 40 A.D.3d 788, 836 N.Y.S.2d 649; J. Tortorella Swimming Pools v. Incredible Coatings Corp., 35 A.D.3d 376, 824 N.Y.S.2d 732; Maldonado v. Suffolk County, 23 A.D.3d 353, 353-354, 803 N.Y.S.2d 439; Giordano v. Vanchieri & Perrier, 16 A.D.3d 621, 621-622, 792 N.Y.S.2d 180; Gagnon v. J.S. Intl. Shipping Corp., 8 A.D.3d 336, 337, 777 N.Y.S.2d 715; Tutora v. Schirripa, 1 A.D.3d 349, 350, 766 N.Y.S.2d 574). Here, the plaintiff failed to comply with either of these requirements. The excuse proffered by the plaintiff's attorney of unspecified law office failure did not constitute a reasonable excuse (see Miraglia v. County of Nassau, 295 A.D.2d 411, 743 N.Y.S.2d 722; Goldstein v. Lopresti, 284 A.D.2d 497, 726 N.Y.S.2d 579; Bravo v. New York City Hous. Auth., 253 A.D.2d 510, 676 N.Y.S.2d 871; Sarles v. Village of Tarrytown, 245 A.D.2d 440, 666 N.Y.S.2d 468). Further, the plaintiff failed to show the existence of a meritorious cause of action (see Tutora v. Schirripa, 1 A.D.3d at 350, 766 N.Y.S.2d 574). Accordingly, the Supreme Court should have dismissed the action.
The parties' remaining contentions either are without merit or need not be considered in light of our determination.
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Decided: April 01, 2008
Court: Supreme Court, Appellate Division, Second Department, New York.
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