| Dayan v Darche |
| 2012 NY Slip Op 04312 [96 AD3d 708] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Naima Dayan, Appellant, v Gary M. Darche,Respondent. |
—[*1] Gordon & Rees LLP, New York, N.Y. (Robert Modica of counsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Queens County (Weiss, J.), dated May 2, 2011, which grantedthe defendant's motion, in effect, pursuant to CPLR 3012 (b) to dismiss the action, and (2) anorder of the same court dated January 4, 2012, which denied her motion for leave to renew heropposition to the defendant's motion.
Ordered that the orders are affirmed, with one bill of costs.
To avoid dismissal of the action for failure to serve a complaint after a demand for thecomplaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both areasonable excuse for the delay in serving the complaint and a potentially meritorious cause ofaction (see Perez-Faringer vHeilman, 79 AD3d 837, 838 [2010]; Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78AD3d 654, 654 [2010]; Pristavec vGalligan, 32 AD3d 834, 834 [2006]; Maldonado v Suffolk County, 23 AD3d 353, 353-354 [2005]).Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint.Furthermore, she failed to establish that she had a potentially meritorious cause of action (seegenerally Rosner v Paley, 65 NY2d 736, 738 [1985]; Allen v Potruch, 282 AD2d484, 484-485 [2001]; Iannacone v Weidman, 273 AD2d 275, 276-277 [2000];Rubinberg v Walker, 252 AD2d 466, 467 [1998]). Accordingly, the Supreme Courtproperly granted the defendant's motion to dismiss the action.
In addition, the plaintiff's motion for leave to renew her opposition to the defendant's motionto dismiss the action was properly denied. In support of her motion, the plaintiff proffered herattorney's affirmation in an attempt to provide a reasonable excuse for the delay in serving thecomplaint. However, the attorney's affirmation, which, inter alia, proffered an unsubstantiatedexcuse of disabling illnesses, was insufficient to warrant a change of the prior determination(see CPLR 2221 [e] [2]; CynanSheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646 [2011]; Mattera v Capric, 54 AD3d 827,828 [2008]; Borgia v Interboro Gen. Hosp., 90 AD2d 531 [1982], affd 59 NY2d802 [1983]; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811,812 [1980]). Moreover, the plaintiff failed to offer a reasonable justification for failing to presentthis affirmation in opposition [*2]to the defendant's originalmotion (see CPLR 2221 [e] [3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510,512 [2009]; Zarecki & Assoc., LLC vRoss, 50 AD3d 679, 680 [2008]; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533 [2007]).Skelos, J.P., Dickerson, Hall and Cohen, JJ., concur.