You are here: / / Failure to Serve Complaint Upon Demand Required Dismissal of the Acti...

Failure to Serve Complaint Upon Demand Required Dismissal of the Action

The Fourth Department determined defendant’s motion to dismiss the action based upon plaintiff’s failure to serve a complaint after a demand should have been granted:

“To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” … . Here, plaintiff failed to meet her burden with respect to either prong of that test.  Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint.  In our view, that excuse is not reasonable… .  Service of the demand for the complaint was complete upon – mailing (see CPLR 2103 [b] [2]), and defendant’s submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred … .  We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption … .  Even assuming, arguendo, that nonreceipt of the demand was a reasonable excuse, we conclude that plaintiff failed to establish a meritorious cause of action with a verified complaint or an affidavit of merit, and thus dismissal of the action is required… . Dunlop v Saint Leo the Great, RC Church, 865, 4th Dept 9-27-13

 

You might also like
THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).
PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
SENTENCING JUDGE INDICATED HE WAS BOUND BY AN AGREEMENT WITH THE PEOPLE CONCERNING DEFENDANT’S SENTENCE, HOWEVER, A SENTENCING JUDGE HAS DISCRETION IN SENTENCING, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).
THERE WAS LEGALLY INSUFFICIENT EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO KILL, IN ADDITION, DEFENDANT’S CONVICTION UNDER AN ACCESSORIAL LIABILITY THEORY WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).
THERE WAS NO EVIDENCE DEFENDANT POSSESSED THE FIREARM BEFORE FORMING THE INTENT TO SHOOT; THE POSSESSION OF A WEAPON SENTENCE MUST RUN CONCURRENTLY WITH THE SENTENCES FOR THE SHOOTING-RELATED OFFENSES (FOURTH DEPT).
DEFENDANT’S PRE-MIRANDA STATEMENT SHOULD HAVE BEEN SUPPRESSED, DEFENDANT DEMONSTRATED HE WAS NOT COMPETENT TO TESTIFY AT THE GRAND JURY, HIS GRAND JURY TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE (FOURTH DEPT). ​
DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).
Statutory “Reckless Disregard” Standard in Vehicle and Traffic Law 1103 (b) Applied to the Driver of a Town Truck—The Driver Was Using a Plow to Remove Water and Debris from a Road—Because the Driver Was Acting On His Own and Had Not Been Assigned to Remove the Water and Debris, the Question Raised on Appeal Was Whether the Driver Was Doing “Work” within the Meaning of Section 1103 (b) such that the Statutory Standard, as Opposed to the Ordinary Negligence Standard, Applied

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Proof Requirements Re: Whether An Account Is Entirely Marital Property Exp... Timeliness Requirements for Motion for Summary Judgment Explained