CPLR § 3012. Service of pleadings and demand for complaint
(d) Extension of time to appear or plead
Nolan v Lechner, 2009 NY Slip Op 01724 (App. Div., 1st, 2009)
A party who has commenced an action by service of a summons without complaint and fails to serve a complaint within 20 days of a demand must demonstrate the merits of the action and a reasonable excuse for the delay in order to avoid dismissal (CPLR 3012[d]; Barasch v Micucci, 49 NY2d 594, 599 [1980]).
Plaintiff did satisfy these requirements. On May 1, 2007, defendants served a notice of appearance and demanded a complaint, which meant that plaintiff had 20 days in which to comply (CPLR 3012[b]). On June 26, 36 days after expiration of the 20-day deadline, plaintiff served a copy of the verified complaint, attached as an exhibit to her cross motion to compel defendants' late acceptance of the complaint (see 3012[d]). Plaintiff's counsel cited law office failure for the delay, claiming to have discovered on June 1 only defendants' notice of appearance, but not their demand; also cited was the disabled plaintiff's physical difficulties in appearing at counsel's office to sign the verification. This constituted a reasonable excuse for the delay (see Wess v Olympia & York Realty Corp., 201 AD2d 365 [1994]).
Plaintiff also submitted an affidavit of merit, sufficiently detailing the injuries she allegedly suffered as a result of defendants' tortious acts. At no time did plaintiff evince an intent to abandon her claim, and defendants have not demonstrated prejudice by reason of the delay (see Rose v Our Lady of Mercy Med. Ctr., 268 AD2d 225 [2000]).
Dismissal of the action under these circumstances was an improvident exercise of the court's discretion (see Aquilar v Nassau Health Care Corp., 40 AD3d 788 [2007]).
The bold is mine.
