ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

September 12, 2024

Tolling the running of the statute of limitations

"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 Stony Brook School, et al. [Respondent], pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against it for failure of the Petitioner to timely serve the complaint.

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". 

Click HERE to access the Appellate Division's decision posted on the Internet.


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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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