| Gibbons v Court Officers' Benevolent Assn. of Nassau County |
| 2010 NY Slip Op 07893 [78 AD3d 654] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Grace Gibbons, Appellant, v Court Officers' BenevolentAssociation of Nassau County et al., Respondents, et al., Defendants. |
—[*1] Ruffo Tabora Mainello & McKay, P.C., Lake Success, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of the duty of fair representation,employment discrimination, and intentional infliction of emotional distress, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Diamond, J.), dated August 25, 2009, which granted themotion of the defendants Court Officers' Benevolent Association of Nassau County, Patrick Cribbin,and John Clancy pursuant to CPLR 3012 (b) to dismiss the action insofar as asserted against them.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, themotion of the defendants Court Officers' Benevolent Association of Nassau County, Patrick Cribbin,and John Clancy pursuant to CPLR 3012 (b) to dismiss the action insofar as asserted against them isdenied, and the plaintiff's verified complaint is deemed served.
On January 14, 2009, the plaintiff commenced this action against the defendants by the filing andsubsequent service of a summons with notice. On June 1, 2009, the defendants Court Officers'Benevolent Association of Nassau County, Patrick Cribbin, and John Clancy (hereinafter collectivelythe defendants), served a notice of appearance with a demand for a complaint, as authorized by CPLR3012 (b). The plaintiff's counsel was retained one week later on June 8, 2009. While counsel forseveral other defendants had consented to an adjournment of the deadline for serving a complaint, thedefendants' counsel refused to either consent to or refuse consent to the plaintiff's various timelyadjournment requests. Thirteen days after the deadline had passed for serving the complaint pursuant toCPLR 3012 (b) and 2103 (b) (2), the defendants moved to dismiss the action insofar as assertedagainst them. The Supreme Court granted the motion. We reverse.
To avoid dismissal for failure to timely serve a complaint after a demand therefor has been servedpursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay and apotentially meritorious cause of action (seePristavec v Galligan, 32 AD3d 834, 834-835 [2006]).
Here, in view of the short delay, the reasons proffered by the plaintiff's counsel for the delay, theabsence of any prejudice to the defendants, the existence of a potentially meritorious cause of [*2]action as set forth in the plaintiff's proposed verified complaint, and thestrong public policy in favor of resolving cases on the merits, the Supreme Court improvidentlyexercised its discretion in granting the defendants' motion pursuant to CPLR 3012 (b) to dismiss theaction insofar as asserted against them (seeLewis v St. Francis Hosp., 10 AD3d 678 [2004]; Klosterman v Federal ExpressCo., 271 AD2d 492 [2000]). Rivera, J.P., Dillon, Eng and Leventhal, JJ., concur.