From Casetext: Smarter Legal Research

Grant v. City of North Tonawanda

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1996
225 A.D.2d 1089 (N.Y. App. Div. 1996)

Opinion

March 8, 1996

Appeal from the Supreme Court, Niagara County, Koshian, J.

Present — Pine, J.P., Lawton, Wesley, Balio and Davis, JJ.


Order unanimously reversed on the law without costs, motion granted and action dismissed. Memorandum: Supreme Court improvidently exercised its discretion in denying defendants' motion to dismiss the action for failure to serve a complaint. Plaintiff commenced this action for false imprisonment in May 1994 by service of a summons with notice. Defendants' attorney served a notice of appearance and demand for complaint dated June 15, 1994. More than two months later defendants moved to dismiss the action pursuant to CPLR 3012 (b). Plaintiff did not serve a written response to the motion, but on its return date her attorney appeared in court and served an unverified complaint. "Once the time to serve a complaint has expired, a plaintiff must provide the court with an affidavit of merit or a verified complaint in lieu thereof" ( A J Concrete Corp. v Arker, 54 N.Y.2d 870, 872; see, Brooks v Inn at Saratoga Assn., 188 A.D.2d 921). Here, plaintiff failed to provide either an affidavit of merit or a verified complaint. Moreover, plaintiff did not show that the two-month delay in serving the complaint was excusable ( see, Fantauzzo v Steimer, 193 A.D.2d 1125; Iafallo v Dolan, 162 A.D.2d 965). Thus, defendants' motion should have been granted.


Summaries of

Grant v. City of North Tonawanda

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1996
225 A.D.2d 1089 (N.Y. App. Div. 1996)
Case details for

Grant v. City of North Tonawanda

Case Details

Full title:STACEY G. GRANT, Respondent, v. CITY OF NORTH TONAWANDA et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 8, 1996

Citations

225 A.D.2d 1089 (N.Y. App. Div. 1996)
639 N.Y.S.2d 193

Citing Cases

Ward v. Quick

Supreme Court granted the motion conditionally, giving plaintiff's 10 days from the order to serve a…

Solomon v. County of Oswego

Supreme Court did not abuse its discretion in granting plaintiff's cross motion to extend the time in which…