Moray v Koven & Krause, Esqs.
2009 NY Slip Op 03877 [62 AD3d 765]
May 12, 2009
Appellate Division, Second Department
As corrected through Wednesday, July 1, 2009


Joseph Moray, Appellant,
v
Koven & Krause, Esqs.,Respondent.

—[*1]Kathy M. Lynch, New York, N.Y. (Ronald Cohen of counsel), for appellant.

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), forrespondent.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Westchester County (Smith, J.), dated June 19, 2008, whichgranted the defendant's motion pursuant to CPLR 3012 (b) to dismiss the action for failure totimely serve a complaint.

Ordered that the order is affirmed, with costs.

To avoid dismissal for failure to serve a complaint after a demand therefor has been servedpursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delayin serving the complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d643 [2008]; Tutora v Schirripa,1 AD3d 349, 350 [2003]; Balgley v Cammarata, 299 AD2d 432 [2002]). Here,the plaintiff failed to show the existence of a meritorious cause of action. Accordingly, theSupreme Court did not improvidently exercise its discretion in granting the defendant's motion todismiss the action.

The plaintiff's contention that the action was stayed pursuant to CPLR 321 (c) is raised forthe first time on appeal and, thus, is not properly before this Court (see Telmark, Inc. v Mills,199 AD2d 579, 580 [1993]; seealso KPSD Mineola, Inc. v Jahn, 57 AD3d 853 [2008]; Triantafillopoulos v Sala Corp., 39AD3d 740 [2007]). Rivera, J.P., Dillon, Covello, Eng and Hall, JJ., concur.


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