| Nolan v Lechner |
| 2009 NY Slip Op 01724 [60 AD3d 473] |
| March 10, 2009 |
| Appellate Division, First Department |
| Maureen Nolan, Appellant, v Jack Lechner et al.,Respondents. |
—[*1] Hoey, King, Toker & Epstein, New York (Danielle M. Dandrige of counsel), forrespondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered February 19, 2008,which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion tocompel their acceptance of the complaint, unanimously reversed, on the law, without costs,defendant's motion denied, the cross motion granted, and defendant directed to accept thecomplaint.
A party who has commenced an action by service of a summons without complaint and failsto serve a complaint within 20 days of a demand must demonstrate the merits of the action and areasonable excuse for the delay in order to avoid dismissal (CPLR 3012 [d]; Barasch vMicucci, 49 NY2d 594, 599 [1980]).
Plaintiff did satisfy these requirements. On May 1, 2007, defendants served a notice ofappearance and demanded a complaint, which meant that plaintiff had 20 days in which tocomply (CPLR 3012 [b]). On June 26, 36 days after expiration of the 20-day deadline, plaintiffserved a copy of the verified complaint, attached as an exhibit to her cross motion to compeldefendants' late acceptance of the complaint (see CPLR 3012 [d]). Plaintiff's counselcited law office failure for the delay, claiming to have discovered on June 1 only defendants'notice of appearance, but not their demand; also cited was the disabled plaintiff's physicaldifficulties in appearing at counsel's office to sign the verification. This constituted a reasonableexcuse for the delay (see Wess v Olympia & York Realty Corp., 201 AD2d 365 [1994]).
Plaintiff also submitted an affidavit of merit, sufficiently detailing the injuries she allegedlysuffered as a result of defendants' tortious acts. At no time did plaintiff evince an intent toabandon her claim, and defendants have not demonstrated prejudice by reason of the delay(see Rose v Our Lady of Mercy Med. Ctr., 268 AD2d 225 [2000]).
Dismissal of the action under these circumstances was an improvident exercise of the court'sdiscretion (see Aquilar v Nassau HealthCare Corp., 40 AD3d 788 [2007]). Concur—Mazzarelli, J.P., Saxe, Nardelli,DeGrasse and Freedman, JJ.