Mezar v. Defranco

190 A.D.3d 849

136 N.Y.S.3d 782 (Mem)

Jude MEZAR, et al., appellants,

v.Louis DEFRANCO, etc., et al., respondents.

2019–04684

Index No. 515352/16

Supreme Court, Appellate Division, Second Department, New York.

Argued - March 16, 2020

January 20, 2021

Asher & Associates, P.C. (Hasapidis Law Offices, South Salem, N.Y. [Annette G. Hasapidis ], of counsel), for appellants.

James E. Johnson, Corporation Counsel, New York, N.Y. (Susan Paulson and Malini Dhanraj of counsel), for respondents.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiffs appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated March 1, 2019. The order, insofar as appealed from, granted the defendants' motion pursuant to CPLR 3012(b) to dismiss the action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"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" ( Carducci v. Russell, 120 A.D.3d 1375, 1375–1376, 993 N.Y.S.2d 119 ; see Telian v. Freund, 129 A.D.3d 828, 9 N.Y.S.3d 886 ). "The determination of what constitutes a reasonable excuse is within the sound discretion of the court" ( Mazzola v. Village Hous. Assoc., LLC, 164 A.D.3d 668, 669, 83 N.Y.S.3d 127 ).

Contrary to the plaintiffs' contention, the defendants' CPLR 3012(b) demand for the complaint was properly served via first class mail (see John Harris, P.C. v. FSA Main St. LLC., 113 A.D.3d 415, 416, 978 N.Y.S.2d 156 ; Tsionis v. Eriora Corp., 123 A.D.3d 694, 696, 998 N.Y.S.2d 117 ). Moreover, the plaintiffs' mere denial of receipt of the demand for the complaint was insufficient to demonstrate a reasonable excuse for their delay in serving the complaint (see CPLR 2103[b][2] ; Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 ; C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 786, 912 N.Y.S.2d 428 ). In view of the foregoing, we need not consider whether the plaintiffs demonstrated a potentially meritorious cause of action.

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court providently exercised its discretion in granting the defendants' motion pursuant...