Opinion
No. 2019-11167 Index No. 525922/18
07-20-2022
Mark F. Belli, appellant, v. Paul A. Belli, et al., respondents.
Mark F. Belli, Brooklyn, NY, appellant pro se. Law Offices of Edmond R. Shinn, Esq., Ltd., Bronx, NY, for respondents.
Mark F. Belli, Brooklyn, NY, appellant pro se.
Law Offices of Edmond R. Shinn, Esq., Ltd., Bronx, NY, for respondents.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action, inter alia, for declaratory relief, the plaintiff appeals from an order of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), dated June 19, 2019. The order granted the defendants' motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff seeks to invalidate certain inter vivos transfers of real estate and stock made by his father, Franco Belli, on the grounds of undue influence by the plaintiff's brother, the defendant Paul A. Belli, and lack of capacity to make the transfers. The Supreme Court did not err in granting the defendants' motion pursuant to CPLR 3012(b) to dismiss this action for failure to timely serve a complaint.
"To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff [must] demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action" (Percival v Northwell Health Sys., 173 A.D.3d 916, 917 [internal quotation marks omitted]; see Riley v Health & Hosp. Corp., 153 A.D.3d 742; Lobel v Hilltop Vil. Coop., No. 4, 138 A.D.3d 938). "'The determination of what constitutes a reasonable excuse is within the sound discretion of the court'" (Mezar v Defranco, 190 A.D.3d 849, 850, quoting Mazzola v Village Hous. Assoc., LLC, 164 A.D.3d 668, 669).
Here, even assuming the plaintiff had a reasonable excuse for the delay in serving the complaint, he failed to demonstrate a potentially meritorious cause of action (see Percival v Northwell Health Sys., 173 A.D.3d at 917). The allegations in the plaintiff's proposed verified complaint were based mainly upon information and belief, and were insufficient to establish a meritorious claim (see generally Fekete v Camp Skwere, 16 A.D.3d 544). Moreover, to the extent the plaintiff asserts claims based upon undue influence, he failed to plead the circumstances constituting the wrong in detail, as required by CPLR 3016(b) (see generally Oppedisano v D'Agostino, 196 A.D.3d 497, 499-500).
CONNOLLY, J.P., CHRISTOPHER, GENOVESI and FORD, JJ., concur.