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Berges v. Pfizer, Inc.

Supreme Court of New York, Fourth Department

July 5, 2013

JUDITH A. BERGES, PLAINTIFF-APPELLANT,
v.
PFIZER, INC., DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered August 29, 2011. The order, inter alia, granted the motion of defendant to dismiss the complaint.

TRONOLONE & SURGALLA, P.C., BUFFALO (GERARD A. STRAUSS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, NEW YORK CITY (MARA CUSKER GONZALEZ OF COUNSEL), AND HARRIS BEACH PLLC, BUFFALO, FOR DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting the motion of defendant to dismiss the action based on the failure of plaintiff to comply with defendant's demand for service of a complaint pursuant to CPLR 3012 (b) and denying her amended cross motion to compel defendant to accept late service of her complaint. We affirm. "To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action" (Kordasiewicz v BCC Prods., Inc., 26 A.D.3d 853, 854 [internal quotation marks omitted]). Even assuming, arguendo, that plaintiff provided a reasonable excuse for her delay in serving the complaint, we conclude that Supreme Court properly determined that she failed to establish a meritorious cause of action (see generally Fasano v J.C. Penney Corp., 59 A.D.3d 1102, 1102; Kordasiewicz, 26 A.D.3d at 855). A meritorious cause of action may be established by way of "an affidavit of merit containing evidentiary facts sufficient to establish a prima facie case" (Kel Mgt. Corp. v Rogers & Wells, 64 N.Y.2d 904, 905; see Tonello v Carborundum Co., 91 A.D.2d 1169, 1170, affd 59 N.Y.2d 720, rearg denied 60 N.Y.2d 587). "It must be of a type which would defeat a motion for summary judgment on the ground that there is no issue of fact" (Tonello, 91 A.D.2d at 1170). Although plaintiff is correct that a verified pleading may be accepted in lieu of an affidavit of merit (see CPLR 105 [u]; A & J Concrete Corp. v Arker, 54 N.Y.2d 870, 872; Kordasiewicz, 26 A.D.3d at 855), here the verified complaint sets forth conclusory assertions that are insufficient to establish a meritorious cause of action (see Wellington v Weber, 193 A.D.2d 1111, 1112; see generally Weis v Weis, 138 A.D.2d 968, 969). In addition, " the averments of a lay plaintiff cannot serve as the essential showing of the merit... where, as here, the averments include matters not within the ordinary experience and knowledge of laypersons' " (Kordasiewicz, 26 A.D.3d at 855), and plaintiff improperly submitted a physician's affidavit of merit for the first time in reply (see Siculan v Koukos, 74 A.D.3d 946, 947). In any event, the physician's affidavit was devoid of any evidentiary facts or detail regarding plaintiff's causes of action.


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