On March 15, 2019, T.B.D. and others served a summons with notice against a law firm. The latter served a demand for a complaint and the parties agreed to extend plaintiffs’ time to file a pleading until July 8, 2019.
Over a year later, when plaintiffs filed a malpractice complaint on December 8, 2020, the law firm moved to dismiss the case under a NY state law [CPLR 3012(b)] based upon the plaintiffs’ failure to timely serve a complaint, or alternatively, to dismiss [under CPLR 3211(a)], or to stay the action [under CPLR 2201]. The Nassau County Supreme Court denied the motion, leading to an appeal.
Upon its review, the Appellate Division, Second Department, concluded that the lower court had “improvidently exercised its discretion” in denying the motion to dismiss.
Apparently, T.B.D. failed to demonstrate a reasonable excuse for the delay in serving the complaint. The claim that the parties were actively engaged in settlement negotiations was viewed as makeweight, particularly in the absence of any proof. And, in any event, the AD2 did not think such discussions excused the delay. Consequently, the underlying determination was reversed, and the action dismissed [pursuant to CPLR 3012(b)].
Was T.B.D. out of practice there?
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DECISION