| Drake v Bates |
| 2008 NY Slip Op 02707 [49 AD3d 1098] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Ronald Drake Jr., Appellant, v John Bates, as Sheriff of SchoharieCounty, et al., Respondents. |
—[*1] Murphy, Burns, Barber & Murphy, L.L.P., Albany (Thomas K. Murphy of counsel), forrespondents.
Rose, J. Appeal from an order of the Supreme Court (Lamont, J.), entered January 12, 2007in Schoharie County, which granted defendants' motion to dismiss the action based on plaintiff'sfailure to timely serve a complaint.
Plaintiff commenced this negligence action to recover alleged damages sustained while hewas 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. Afterplaintiff failed to serve a complaint, defendants moved on October 18, 2006 for dismissal of theaction 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 pursuantto CPLR 3012 (b), plaintiff must show a reasonable excuse for the delay and a meritorious causeof action (see Norrish v Pacini, 29AD3d 1063, 1063 [2006]; Amodeov Gellert & Quartararo, P.C., 26 AD3d 705, 706 [2006]). Affording Supreme Courtconsiderable discretion in evaluating plaintiff's opposition to defendants' motion to dismiss (see Brown v Hannaford Bros. Co., 27AD3d 815, 816 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706), wefind no abuse of discretion in the determination that the excuse for failing to file acomplaint—namely that his attorney could not discuss the matter with plaintiff during theone-year delay due to plaintiff being reincarcerated in another county—was unreasonable.[*2]Furthermore, as plaintiff did not submit an affidavit or averified pleading containing evidentiary facts attested by someone with personal knowledge ofthose facts in opposition to the motion to dismiss, plaintiff failed to demonstrate a meritoriouscause of action (see Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905 [1985];Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706). Finally, plaintiff cannot avoidthe consequences of the acts or omissions of his retained counsel (see Link v Wabash R.Co., 370 US 626, 633-634 [1962]; Department of Social Servs. v Trustum C.D., 97AD2d 831, 831 [1983], lv denied 61 NY2d 605 [1984]), and no right to the effectiveassistance of counsel is implicated here (see Matter of Chase, 44 AD3d 1180, 1182 [2007]; Xiaokang Xu v Xiaoling Shirley He, 24AD3d 862, 864 [2005], lv denied 6 NY3d 710 [2006]; Olmstead v FederatedDept. Stores, 208 AD2d 979, 982 [1994], lv denied 85 NY2d 811 [1995]).
Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.