| Perez-Faringer v Heilman |
| 2010 NY Slip Op 09238 [79 AD3d 837] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Gunilla Perez-Faringer et al., Appellants, v Julia Heilman et al.,Defendants, and Sue Freedman, Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Stephen D. Straus of counsel),for respondent.
In an action, inter alia, to recover damages for legal malpractice, fraud, and breach of fiduciaryduty, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Colabella, J.),entered July 14, 2009, which granted the motion of the defendant Sue Freedman pursuant to CPLR3012 (b) to dismiss the action insofar as asserted against that defendant, and (2) an order of the samecourt entered July 14, 2009, which denied their motion, among other things, pursuant to CPLR 3012(d) to extend the time to serve their complaint.
Ordered that the orders are affirmed, with one bill of costs.
The plaintiffs purchased a parcel of real property located in Scarsdale (hereinafter the subjectproperty), from the defendant Lila Lambert Carloni. In this real estate transaction, the plaintiffs wererepresented by the defendant Julia Heilman and Carloni was represented by the defendant SueFreedman. Subsequent to the closing of title, the plaintiffs discovered that the property upon which aneasement which they needed to park their cars would not be maintained or repaired by the Village ofScarsdale, as represented by Carloni in the contract. In addition, they found out that the third floor ofthe home on the property, which had been converted into living space, and the front deck, did not havecertificates of occupancy.
On September 29, 2008, the plaintiffs pro se filed a summons with notice at the WestchesterCounty Clerk commencing an action against, among others, Heilman, Carloni, and Freedman, inter alia,to recover damages for legal malpractice, fraud, and breach of fiduciary duty.
On February 9, 2009, Freedman served a demand for a complaint on the plaintiffs. SinceFreedman mailed this demand to the plaintiffs, the plaintiffs had until March 6, 2009, to serve theircomplaint. The plaintiffs failed to serve a complaint upon Freedman by that date.[*2]
In an order entered July 14, 2009, the Supreme Court grantedFreedman's motion to dismiss the action pursuant to CPLR 3012 (b) insofar as asserted against her. Ina second order also issued the same day, the Supreme Court denied the plaintiffs' motion, inter alia, toextend their time to serve their complaint. We affirm.
In order to avoid dismissal for failure to serve a complaint after a demand for the complaint hasbeen made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for thedelay in serving the complaint and a potentially meritorious cause of action (see Gibbons v CourtOfficers' Benevolent Assn. of Nassau County, 78 AD3d 654 [2010]; Pristavec v Galligan, 32 AD3d 834[2006]; Maldonado v Suffolk County,23 AD3d 353 [2005]; Giordano vVanchieri & Perrier, 16 AD3d 621 [2005]; Tutora v Schirripa, 1 AD3d 349 [2003]; Balgley v Cammarata,299 AD2d 432 [2002]). Here, while the plaintiffs provided a reasonable excuse for their delay inserving the complaint (see Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78AD3d 654 [2010]; Pristavec v Galligan,32 AD3d 834 [2006]), they failed to establish that they have potentially meritorious causes ofaction against Freedman (see Balgley v Cammarata, 299 AD2d 432 [2002]; Chmielnik vRosenberg, 269 AD2d 555 [2000]). Accordingly, the Supreme Court properly grantedFreedman's motion to dismiss the action pursuant to CPLR 3012 (b) insofar as asserted against her andproperly denied the plaintiffs' motion. Fisher, J.P., Angiolillo, Belen and Austin, JJ., concur.