"To avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action" (see Mazzola v Village Hous. Assoc., LLC, 164 AD3d 668, 669; Fox v Gross, 219 AD3d 584, 585-586). The determination of what constitutes a reasonable excuse for a delay in serving a complaint after a demand is made is within the discretion of the court".
Supreme Court granted the motion of
The Appellate Division, however, reversed the Supreme Court's ruling "on the law and, in the exercise of its discretion", denied the motion of the Respondent to dismiss the action "insofar as asserted against it for failure to timely serve the complaint."
The Appellate Division's ruling states that in June, Plaintiff had commenced this action filing a summons with notice and moved for leave to proceed anonymously. On June 23, Respondent served the Plaintiff with a demand for the complaint. Plaintiff then served the complaint on Respondent and Respondent moved pursuant to to dismiss the action insofar as asserted against it, arguing that the complaint was not served within the 20-day period after the demand was served as mandated by CPLR 3012(b). Supreme Court granted the Respondent's motion. The Plaintiff then appealed the Supreme Court's ruling.
Granting Plaintiff's motion to vacate the lower coutt's decision, the Appellate Division observed:
1. "To avoid dismissal of an action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate:
a. A reasonable excuse for the delay in serving the complaint; and
b. A potentially meritorious cause
of action.
The determination of what constitutes a reasonable excuse for a delay in serving a complaint after a demand is made is within the discretion of the court.
The Appellate Division opined that Plaintiff "proffered a reasonable excuse for the delay in serving the complaint, as [Plaintiff's] motion for leave to proceed anonymously was not decided until after the 20-day period to comply with the [Respondent's] demand for the complaint had expired."
Further, said the court, Plaintiff also demonstrated that he had a potentially meritorious cause of action. Thus "Supreme Court should have denied the [Respondent's] motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against it for failure to timely serve the complaint".
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to access the Appellate Division's decision posted on the Internet.