Opinion
23126/2008.
Decided July 19, 2011.
Davida P Holmes, Esq, Plaintiffs Attorney.
Marisa Arrabito, Gannon, Rosenfarb Moskowitz, Malapero Prisco, LLP, Defendants Attorney.
This is an action brought by Evette Ross, the plaintiff, to recover damages for personal injuries allegedly sustained on the defendant Judith Rattray's property, located at 1612 East 91st Street, Brooklyn, New York 11236. The plaintiff alleges that she tripped after stepping in a hole in the sidewalk on the defendant's property, and demands $1,000,000 in compensatory damages and $500,000 in punitive damages for the defendant's alleged negligence in maintaining her property.
This action was commenced with a service of a Summons with Notice on August 11, 2008. The defendant, Judith Rattray, served a Notice of Appearance/General Denial and Demand for Complaint on April 21, 2009. After the complaint remained undelivered for some time, the plaintiff's attorney and the defendant's attorney engaged in communications and agreed that the plaintiff would serve the complaint by September 25, 2009. The complaint was not served by that date and the defendant moved to dismiss this action on or about October 13, 2009.
Both parties then appeared before this Court on April 9, 2010. The plaintiff was subsequently ordered to serve and file an affidavit of merit in opposition to the defendant's motion, to serve the defendant with a verified complaint, and to file the affidavit of service with the court, all within two weeks of the order. The plaintiff's attorney then served the defendant's attorney with a complaint verified by the plaintiff's attorney, and an "Affirmation in Merit" signed by the plaintiff's attorney. Both the complaint and "Affirmation in Merit" were dated April 23, 2010. The defendant continues to seek dismissal of this action.
The defendant contends that this action must be dismissed pursuant to NY C.P.L.R. § 3012(b) (McKinney's 2010). NY C.P.L.R. § 3012(b) provides, in relevant part, that "[i]f the complaint is not served with the summons, the defendant may serve a written demand for the complaint within the time provided in subdivision (a) of rule 320 for an appearance. Service of the complaint shall be made within twenty days after service of the demand . . . The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision." The defendant argues that because the plaintiff has neither made a prima facie showing of legal merit nor presented this Court with a reasonable excuse for the delay, the action must be dismissed. The defendant further argues that because the plaintiff failed to file both an affidavit of merit and an affidavit of service, the plaintiff violated the court order issued April 9, 2010.
In opposition, the plaintiff cites NY C.P.L.R. § 3012(d). NY C.P.L.R. § 3012(d) provides, in relevant part, that "[u]pon the application of a party, the court may extend the time to plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." The plaintiff, in effect, offers "law office failure" as her excuse to explain the untimely complaint. The plaintiff argues that her excuse is reasonable and, accordingly, asks this Court to exercise its authority, pursuant to NY C.P.L.R. § 3012(d), and compel the defendant to accept the untimely complaint.
"A plaintiff who seeks to serve a complaint after expiration of the 20-day statutory period following service of a demand therefore as specified in [NY C.P.L.R. § 3012(b)] must demonstrate that there was a reasonable excuse for the delay and make a prima facie showing of legal merit." Egan v. Federated Dept. Stores, Inc., 108 AD2d 718, 718, 484 N.Y.S.2d 883, 884 (2d Dep't 1985). Here, the plaintiff Evette Ross has failed to meet this burden. On April 9, 2010, this Court expressly ordered Ross' attorney to serve and file an affidavit of merit in opposition to the defendant's motion to dismiss. Rather than filing an affidavit of merit, Ross' attorney filed an attorney-signed "Affirmation in Merit."
Evette Ross' "Affirmation in Merit" is insufficient to make a prima facie showing of legal merit. An affidavit of merit must be based on firsthand knowledge and an attorney's affidavit based on information and belief is insufficient. See Marion v. Notre Dame Academy High School, 133 AD2d 614, 615, 519 N.Y.S.2d 721, 722 (2d Dep't 1987) (holding that an attorney's affirmation was insufficient to demonstrate the legal merit of the plaintiff's claims because the attorney did not have firsthand knowledge of the underlying facts giving rise to the claims). Similar to Marion, Evette Ross' attorney has no firsthand knowledge of the incident on which this action is based. Therefore, because Ross' "Affirmation in Merit" was prepared and signed by her attorney, and not the plaintiff Evette Ross, it is insufficient to establish a prima facie showing of legal merit. See id.
In some circumstances, a verified complaint may serve as an affidavit of merit. Kennedy v. Henry Holland, Inc., 145 AD2d 964, 964, 536 N.Y.S.2d 618, 619 (4th Dep't 1988). However, in order for a verified complaint to act as an affidavit of merit, the plaintiff must verify it. Man v. Mantione, 174 AD2d 710, 711, 571 N.Y.S.2d 560, 561 (2d Dep't 1991); See also Solano v. Castro , 72 AD3d 932 , 932, 902 N.Y.S.2d 95, 95 (2d Dep't 2010) (holding that a verified complaint was insufficient to establish a prima facie showing of legal merit because it was verified by the plaintiff's attorney rather than the plaintiff). Here, as in Solano, Ross' attorney verified the complaint rather than the plaintiff Evette Ross. As such, the verified complaint may not serve as the affidavit of merit. See Solano, 72 AD3d at 932, 902 N.Y.S.2d at 95. Therefore, the documents submitted to this Court are insufficient to establish a prima facie showing of legal merit.
If the plaintiff could demonstrate a prima facie showing of legal merit and offer a reasonable excuse, the motion to dismiss would be denied. See Egan, 108 AD2d at 718, 484 N.Y.S.2d at 884. The general trend has been to deny a motion to dismiss pursuant to NY C.P.L.R. § 3012(b) when a reasonable "law office failure" is offered as an excuse. E.g., Watson v. Pollachi, 32 AD3d 565, 819 N.Y.S.2d 612 (3d Dep't. 2006); Gordineer v. Gallagher, 160 AD2d 672, 553 N.Y.S.2d 449 (2d Dep't 1990). However, Evette Ross has failed to offer any excuse that this Court finds reasonable. Ross attempts to explain the untimely service by simply stating, "[t]he delay in service of the Complaint is due to no fault of the Plaintiff but rather [rests] on the shoulders of her attorney." From this statement alone, one cannot deem Evette Ross' excuse "reasonable." If Ross had elaborated upon the facts surrounding the delay, this Court may be more willing to view it as reasonable. However, Ross merely stated that her attorney was responsible for the delay. This Court is unsatisfied with this excuse and, accordingly, declines to view it as reasonable.
The defendant's argument that Evette Ross' attorney violated the April 9, 2010 court order is unpersuasive. On April 23, 2010, Ross' attorney filed an affirmation of service for both the "Affirmation in Merit" and verified complaint. Ross' attorney's failure to file a proper affidavit of merit does not warrant punishment "for disobedience to a lawful mandate of the court," though such action is authorized. See NY Judiciary Law § 753(A)(1) (McKinney 2003). It seems likely that Ross' attorney was attempting to submit the proper document when the "Affirmation in Merit" was filed. As such, this Court considers Ross' attorney's inadvertent court order violation excusable. Therefore, this Court will not hold Ross' attorney in contempt for the noncompliance with the April 9, 2010 court order.
When a plaintiff does not submit an affidavit of merit demonstrating a prima facie showing of merit in response to a NY C.P.L.R. § 3012(b) motion to dismiss, it is an error, as a matter of law, not to grant the motion to dismiss without condition. See Kel Management Corp. v. Rogers Wells, 64 NY2d 904, 905 477 N.E.2d 458, 459 (1985). Accordingly, the defendant Rattray's motion to dismiss the plaintiff Ross' action is granted.
This constitutes the decision and order of the Court.