| Mitrani Plasterers Co., Inc. v SCG Contr. Corp. |
| 2012 NY Slip Op 05398 [97 AD3d 552] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Mitrani Plasterers Co., Inc., Respondent, v SCGContracting Corp., Appellant. |
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Mayer, Ross & Hagan, P.C., Patchogue, N.Y. (Christopher R. Ross of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froman order of the Supreme Court, Suffolk County (Jones, J.), dated October 25, 2011, which deniedits motion pursuant to CPLR 3012 (b) to dismiss the action for failure to serve a timely complaintand granted the plaintiff's cross motion pursuant to CPLR 3012 (d) to compel it to accept theuntimely complaint.
Ordered that the order is affirmed, with costs.
To avoid dismissal of the action for failure to serve a complaint after a demand therefor hasbeen made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse forthe delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79AD3d 837, 838 [2010]; Gibbons vCourt Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 654 [2010]; Pristavec v Galligan, 32 AD3d834, 834 [2006]). The determination of what constitutes a reasonable excuse for a defaultlies within the sound discretion of the court (see Pristavec v Galligan, 32 AD3d at834-835). When exercising its discretion in this regard, a court should consider all relevantfactors, including the extent of the delay, the prejudice to the opposing party, and the lack of anintent to abandon the action (see Grace vFollini, 80 AD3d 560, 560-561 [2011]; Aquilar v Nassau Health Care Corp., 40 AD3d 788, 789 [2007]; Harcztark v Drive Variety, Inc., 21AD3d 876 [2005]).
The excuse of law office failure proffered by the plaintiff's attorney was reasonable under thecircumstances of this case, given the length of the delay, the lack of prejudice to the defendant,the plaintiff's active participation in a related proceeding brought by the defendant against theplaintiff, and the plaintiff's lack of intent to abandon the action (see CPLR 2005;Aquilar v Nassau Health Care Corp., 40 AD3d at 789; Orwell Bldg. Corp. v Bessaha, 5 AD3d573, 574-575 [2004]). Furthermore, the plaintiff adequately demonstrated the potential meritof its action by attaching a detailed verified complaint and an affidavit from its officer(see CPLR 105 [u]; Pristavec v Galligan, 32 AD3d at 835). Accordingly, theSupreme Court providently exercised its discretion in denying the defendant's motion to dismissthe action and in granting the plaintiff's cross motion to compel [*2]acceptance of the untimely complaint. Dillon, J.P., Balkin, Belenand Austin, JJ., concur.