Opinion
2013-04-24
Angel PEREZ, respondent, v. GEICO INSURANCE COMPANY, appellant.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Arthur R. Simuro and Donald S. Neumann, Jr., of counsel), for appellant. David A. Bythewood, Mineola, N.Y., for respondent.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Arthur R. Simuro and Donald S. Neumann, Jr., of counsel), for appellant. David A. Bythewood, Mineola, N.Y., for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), entered December 12, 2011, which denied its motion pursuant to CPLR 3012(b) to dismiss the action for failure to serve a timely complaint, or, alternatively, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, or, alternatively, pursuant to CPLR 3211(c) for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, that branch of the defendant's motion which was pursuant to CPLR 3012(b) to dismiss the action for failure to serve a timely complaint is granted, and the remaining branches of the motion are denied as academic.
“In order to avoid dismissal 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” ( Perez–Faringer v. Heilman, 79 A.D.3d 837, 838, 912 N.Y.S.2d 418;Gibbons v. Court Officers' Benevolent Assn. of Nassau County, 78 A.D.3d 654, 909 N.Y.S.2d 917). Here, while the plaintiff provided a reasonable excuse for his delay in serving the complaint ( see Perez–Faringer v. Heilman, 79 A.D.3d at 838, 912 N.Y.S.2d 418;Pristavec v. Galligan, 32 A.D.3d 834, 820 N.Y.S.2d 529), he failed to establish that he had a potentially meritorious cause of action ( see Perez–FARINGER V. HEILMAN, 79 A.D.3D AT 838, 912 n.y.s.2d 418;Balgley v. Cammarata, 299 A.D.2d 432, 749 N.Y.S.2d 732;Chmielnik v. Rosenberg, 269 A.D.2d 555, 703 N.Y.S.2d 754). The plaintiff's allegations are patently insufficient to demonstrate a potentially meritorious cause of action to recover damages for breach of contract predicated upon his purported status as a third-party beneficiary to the subject insurance contract ( see Tilden Commercial Alliance v. 2nd Edition Originals, Inc., 242 A.D.2d 702, 664 N.Y.S.2d 951;cf. Green v. Fox Is. Park Autobody, 255 A.D.2d 417, 419, 680 N.Y.S.2d 560;Segall v. Rapkin, 243 A.D.2d 624, 663 N.Y.S.2d 234). Further, the plaintiff has not alleged any material misrepresentation or misleading act or practice on the part of the defendant, such that the plaintiff failed to demonstrate potentially meritorious causes of action sounding in fraud and deceptive business practices ( see generally Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976;Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608;County of Suffolk v. Long Is. Power Auth., 100 A.D.3d 944, 954 N.Y.S.2d 619;Andre Strishak & Assoc. v. Hewlett Packard Co., 300 A.D.2d 608, 752 N.Y.S.2d 400).
Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3012(b) to dismiss the action, and denied, as academic, the remaining branches of the motion.