DRAKE v. BATES (2008)

Appeal from an order of the Supreme Court (Lamont, J.), entered January 12, 2007 in Schoharie County, which granted defendants' motion to dismiss the action based on plaintiff's failure to timely serve a complaint.

Plaintiff commenced this negligence action to recover alleged damages sustained while he was incarcerated at the Schoharie County Jail. After service of a summons with notice, defendants served a notice of appearance and demand for complaint on October 17, 2005.   After plaintiff failed to serve a complaint, defendants moved on October 18, 2006 for dismissal of the action pursuant to CPLR 3012(b).  Supreme Court granted the motion and plaintiff appeals.

 To successfully oppose a motion to dismiss for failing to timely serve a complaint pursuant to CPLR 3012(b), plaintiff must show a reasonable excuse for the delay and a meritorious cause of action (see Norrish v. Pacini, 29 A.D.3d 1063, 1063, 814 N.Y.S.2d 385 [2006];  Amodeo v. Gellert & Quartararo, P.C., 26 A.D.3d 705, 706, 810 N.Y.S.2d 246 [2006] ).   Affording Supreme Court considerable discretion in evaluating plaintiff's opposition to defendants' motion to dismiss (see Brown v. Hannaford Bros. Co., 27 A.D.3d 815, 816, 809 N.Y.S.2d 477 [2006];  Amodeo v. Gellert & Quartararo, P.C., 26 A.D.3d at 706, 810 N.Y.S.2d 246), we find no abuse of discretion in the determination that the excuse for failing to file a complaint-namely that his attorney could not discuss the matter with plaintiff during the one-year delay due to plaintiff being re-incarcerated in another county-was unreasonable.   Furthermore, as plaintiff did not submit an affidavit or a verified pleading containing evidentiary facts attested by someone with personal knowledge of those facts in opposition to the motion to dismiss, plaintiff failed to demonstrate a meritorious cause of action (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, P.C., 26 A.D.3d at 706, 810 N.Y.S.2d 246).   Finally, plaintiff cannot avoid the consequences of the acts or omissions of his retained counsel (see Link v. Wabash R. Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386, 8 L.Ed.2d 734 [1962];  Department of Social Servs. v. Trustum C.D. 97 A.D.2d 831, 831, 468 N.Y.S.2d 908 [1983], lv. denied 61 N.Y.2d 605, 473 N.Y.S.2d 1026, 462 N.E.2d 156 [1984] ), and no right to the effective assistance of counsel is implicated here (see Matter of Chase, 44 A.D.3d 1180, 1182, 844 N.Y.S.2d 462 [2007];  Xiaokang Xu v. Xiaoling Shirley He, 24 A.D.3d 862, 864, 804 N.Y.S.2d 867 [2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006];  Olmstead v. Federated Dept. Stores, 208 A.D.2d 979, 982, 617 N.Y.S.2d 225 [1994], lv. denied 85 N.Y.2d 811, 631 N.Y.S.2d 287, 655 N.E.2d 400 [1995] ).

ORDERED that the order is affirmed, without costs.

ROSE, J.

MERCURE, J.P., SPAIN, LAHTINEN and KAVANAGH, JJ., concur.