Tutora v. Schirripa

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered September 24, 2002, which granted the defendant’s motion pursuant to CPLR 3012 (b) to dismiss the action for failure to timely serve a complaint, and denied his cross motion to enlarge his time to serve a complaint. 350 Ordered that the order is affirmed, with costs. It is well settled that to avoid dismissal for failure to serve a complaint after a demand therefor has been served 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 (see Dunefsky v Petco Animal Supplies, 303 AD2d 620 [2003]; Balgley v Cammarata, 299 AD2d 432 [2002]; Miraglia v County of Nassau, 295 AD2d 411 [2002]). The plaintiff failed to show the existence of a meritorious cause of action. Accordingly, the Supreme Court properly dismissed the action. Santucci, J.E, Goldstein, Schmidt and Cozier, JJ., concur.