Opinion
06-10-2015
Inger Sofia TELIAN, appellant, v. Robert M. FREUND, etc., respondent.
Stephen N. Preziosi, New York, N.Y., for appellant. Santangelo Benvenuto & Slattery (James W. Tuffin, Islandia, N.Y., of counsel), for respondent.
Stephen N. Preziosi, New York, N.Y., for appellant.
Santangelo Benvenuto & Slattery (James W. Tuffin, Islandia, N.Y., of counsel), for respondent.
Opinion
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Queens County (O'Donoghue, J.), entered April 29, 2014, which, upon an order of the same court entered March 10, 2014, granting the defendant's motion pursuant to CPLR 3012(b) to dismiss the action, is in favor of the defendant and against her dismissing the complaint.
ORDERED that the judgment is affirmed, 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 Mitrani Plasterers
Co., Inc. v SCG Contr. Corp., 97 A.D.3d 552, 552, 947 N.Y.S.2d 339 ; Dayan v. Darche, 96 A.D.3d 708, 708, 945 N.Y.S.2d 735 ). Here, the plaintiff failed to proffer a reasonable excuse for her lengthy delay of more than six years in serving the complaint after being served by the defendant with a notice of appearance and demand for a complaint (see CPLR 2103 [b][2], [4]; [c] ). In any event, she failed to establish that she had a potentially meritorious cause of action to recover damages for medical malpractice (see Brice v. Westchester Community Health Plan, 143 A.D.2d 170, 170, 531 N.Y.S.2d 621 ; Estate of Ward v. Hoffman, 139 A.D.2d 691, 692, 527 N.Y.S.2d 447 ) or breach of contract (see Robins v. Finestone, 308 N.Y. 543, 546, 127 N.E.2d 330 ; Varone v. Delman, 272 A.D.2d 320, 320, 707 N.Y.S.2d 879 ).
The plaintiff's remaining contentions are without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3012(b) to dismiss the action (see Dayan v. Darche, 96 A.D.3d at 708, 945 N.Y.S.2d 735 ; Eglit v. County of Westchester, 46 A.D.3d 504, 505, 846 N.Y.S.2d 658 ).
RIVERA, J.P., HALL, AUSTIN and LaSALLE, JJ., concur.