3012(b) and efiling

Mazzola v Village Hous. Assoc., LLC, 2018 NY Slip Op 05759 [2d Dept 2018]

To avoid dismissal of an action for failure to 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 potentially meritorious cause of action (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d 938Telian v Freund, 129 AD3d 828Carducci v Russell, 120 AD3d 1375). The determination of what constitutes a reasonable excuse is within the sound discretion of the court (see Castor v Cuevas, 137 AD3d 734Khamis v Corporate Transp. Group, Ltd., 135 AD3d 825, 826). While the court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse (see Lobel v Hilltop Vil. Coop., No. 4, 138 AD3d at 939; Khamis v Corporate Transp. Group, Ltd., 135 AD3d at 826; Carducci v Russell, 120 AD3d at 1375-1376; Rock v New York City Tr. Auth., 78 AD3d 680Leibowitz v Glickman, 50 AD3d 643Miraglia v County of Nassau, 295 AD2d 411).

Here, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 3012(b) to dismiss the action on the ground that the plaintiff failed to timely serve the complaint. The excuse proffered by the plaintiff, that his counsel did not receive the demand for the complaint that was served upon him by regular mail, was unreasonable under the circumstances. The record demonstrates, and the plaintiff does not dispute, that this action was commenced as an electronically filed case in the New York State Courts Electronic Filing System (hereinafter NYSCEF). On August 2, 2016, the defendant uploaded a notice of appearance and demand for the complaint to the NYSCEF system, and also served a copy upon the plaintiff by regular mail. That same day, the NYSCEF system provided an email notification to the plaintiff's counsel that the notice of appearance and demand for the complaint had been uploaded. The plaintiff failed to proffer any excuse, let alone a reasonable excuse, for his failure to timely serve a complaint in response to this email notification. In light of the plaintiff's failure to demonstrate a reasonable excuse, we need not consider whether he had a potentially meritorious cause of action.