CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint
CPLR § 321 Attorneys
(c) Death, removal or disability of attorney
If an attorney dies, becomes physically or mentally incapacitated, or
is removed, suspended or otherwise becomes disabled at any time before
judgment, no further proceeding shall be taken in the action against
the party for whom he appeared, without leave of the court, until
thirty days after notice to appoint another attorney has been served
upon that party either personally or in such manner as the court
directs.
Moray v Koven & Krause, Esqs., 2009 NY Slip Op 03877 (App. Div., 2nd, 2009)
To avoid dismissal for failure to serve a complaint after a
demand therefor has been served pursuant to CPLR 3012(b), a plaintiff
must demonstrate both a reasonable excuse for the delay in serving the
complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d 643; Tutora v Schirripa, 1 AD3d 349, 350; Balgley v Cammarata, 299
AD2d 432). Here, the plaintiff failed to show the existence of a
meritorious cause of action. Accordingly, the Supreme Court did not
improvidently exercise its discretion in granting the defendant's
motion to dismiss the action.The plaintiff's contention that the action was stayed pursuant
to CPLR 321(c) is raised for the first time on appeal and, thus, is not
properly before this Court (see Telmark, Inc. v Mills, 199 AD2d 579, 580; see also KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740).
Splinters, Inc. v Greenfield, 2009 NY Slip Op 04411 (App. Div., 2nd, 2009)
The Supreme Court improvidently exercised its discretion in denying the
branch of the defendants' motion which was to dismiss the 2005 action.
In order "[t]o 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 [*3]of action" (Balgley v Cammarate, 299 AD2d 432; see Pristavec v Galligan, 32 AD3d 834; Maldonado v Suffolk County, 23 AD3d 353; Giordano v Vanchieri & Perrier, 16 AD3d 621; Tutora v Schirripa,
1 AD3d 349). The plaintiff offered no excuse for the failure to serve a
complaint during the approximately seven-month period from the demand
in February 2006 to October 2006, when it purportedly intended to serve
a complaint but failed to do so allegedly as a result of law-office
failure. Further, until an attorney of record withdraws or is changed
or discharged in the manner prescribed by CPLR 321, his or her
authority as attorney of record for his or her client continues, as to
adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d
981, 983). Thus, even if service of the complaint in October 2006 would
have been timely, the service would have been ineffective, since the
plaintiff's second attorney had not yet been substituted as counsel and
therefore had no authority to act for the plaintiff in that action (see
CPLR 321[b]). The 2005 action should therefore have been dismissed for
failure to respond properly and timely to the defendants' demand for a
complaint.
The bold is mine.
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