Opinion
April 26, 2001.
Appeal from an order of the Supreme Court (Demarest, J.), entered January 26, 2000 in St. Lawrence County, which, inter alia, denied defendant's motion to dismiss for failure to serve a complaint.
Fischer, Bessette Muldowney (Richard F. Hunter of counsel), Malone, for appellant.
Robert H. Ballan, Norwood, for respondents.
Before: Crew III, J.P., Peters, Spain, Carpinello and Lahtinen, JJ.
While employed as a school teacher for the Massena Central School District, plaintiff Terrell P. Porter (hereinafter plaintiff) was advised by the Superintendent on October 15, 1998 that defendant had filed a sexual harassment complaint against him and also had made allegations that he engaged in inappropriate conduct with three female students. Plaintiff contends that these allegations are false and malicious. After they were allegedly investigated by the school district and found to be baseless, plaintiff, and his wife derivatively, commenced this action against defendant for defamation, prima facie tort and intentional infliction of emotional distress by serving a summons with notice on November 12, 1999. When no complaint was filed in response to a notice of appearance and demand for a complaint, defendant moved to dismiss the action pursuant to CPLR 3012 (b) on January 3, 2000. Three days later, plaintiffs opposed the motion and cross-moved for an extension of time to serve the complaint or, alternatively, for permission to conduct precomplaint discovery. Supreme Court denied defendant's motion and granted plaintiffs' cross motion with the proviso that a complaint be served within a specified period of time.
Supreme Court did not abuse its considerable discretion in denying defendant's motion to dismiss based upon plaintiffs' failure to serve a complaint (see, Skrabalak v. Finn, 258 A.D.2d 719). In order to succeed in opposing the motion, plaintiffs were required to demonstrate a meritorious cause of action and a reasonable excuse for the delay (see,Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904, 905). Here, plaintiffs submitted an affidavit in which plaintiff detailed the facts and circumstances prompting this action (i.e., his status as a teacher falsely accused by defendant of, among other conduct, inappropriate sexual contact with three female students) (compare, Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 686; Hommell v. Albany Med. Ctr. Hosp., 209 A.D.2d 772; Young v. Bassett Hosp., 190 A.D.2d 905; Brooks v. Inn at Saratoga Assn., 188 A.D.2d 921), as well as the financial and nonfinancial damages he claims to have suffered as a result of the allegedly false accusations. Plaintiff further explained in his affidavit that he requested disclosure of the precise statements published by defendant from the school district, so as to properly plead the defamation cause of action (see, CPLR 3016 [a]), to no avail. His attorney's affidavit demonstrated why a heavy workload prevented him from seeking precomplaint discovery and also reiterated the obstacles encountered in drafting the defamation cause of action because the school district would not voluntarily disclose defendant's published statements (see, Heinrichs v. City of Albany, 239 A.D.2d 639; cf., Bravo v. New York City Hous. Auth., 253 A.D.2d 510). Upon our review of these submissions, we are unable to conclude that Supreme Court abused its discretion in finding that plaintiff's affidavit sufficiently demonstrated merit to the underlying claims, including the defamation claim (see, Donnelly v. Pepicelli, 58 N.Y.2d 268; see generally, Landisi v. Beacon Community Dev. Agency, 180 A.D.2d 1000), as well as a reasonable excuse for the relatively short delay (cf., Burgess v. Brooklyn Jewish Hosp., 272 A.D.2d 285; Quinn v. Wenco Food Sys. Co., 269 A.D.2d 437, lv denied 95 N.Y.2d 758; Grant v. City of N. Tonawanda, 225 A.D.2d 1089). Thus, we affirm Supreme Court's order in all respects.
ORDERED that the order is affirmed, with costs.