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Dunlop v. Saint Leo Great R.C. Church

Supreme Court of New York, Fourth Department

September 27, 2013

EVA E. DUNLOP, PLAINTIFF-RESPONDENT,
v.
SAINT LEO THE GREAT R.C. CHURCH, DEFENDANT-APPELLANT, ET AL., DEFENDANT.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered June 28, 2012. The order, insofar as appealed from, denied the motion of defendant Saint Leo the Great R.C. Church to dismiss the action.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF COUNSEL), FOR DEFENDANT-APPELLANT.

KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFF-RESPONDENT.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted and the action against defendant Saint Leo the Great R.C. Church is dismissed.

Memorandum: Plaintiff commenced this personal injury action by filing a summons with notice on the last day of the relevant statute of limitations. In response, Saint Leo the Great R.C. Church (defendant) mailed to plaintiff's counsel a notice of appearance and demand for the complaint pursuant to CPLR 3012 (b). When plaintiff failed to comply with defendant's demand for the complaint, defendant moved to dismiss the action. Supreme Court denied the motion, and defendant appeals.

We conclude that the court erred in denying the motion. "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]). Here, plaintiff failed to meet her burden with respect to either prong of that test. Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant's demand for the complaint. In our view, that excuse is not reasonable (see Imperiale v Prezioso, 4 Misc.3d 716, 719-720). Service of the demand for the complaint was complete upon mailing (see CPLR 2103 [b] [2]), and defendant's submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred (see Kihl v Pfeffer, 94 N.Y.2d 118, 122). We agree with defendant that plaintiff's mere denial of receipt of the demand was insufficient to rebut that presumption (see id.; Engel v Lichterman, 62 N.Y.2d 943, 944—945; cf. Vita v Heller, 97 A.D.2d 464, 464-465). Even assuming, ...


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