Drake v. Bates — 49 A.D.3d 1098

Majority

p. 1098

Ronald Drake Jr., Appellant, v John Bates, as Sheriff of Schoharie County, et al., Respondents.

[853 NYS2d 733]

Plaintiff commenced this negligence action to recover alleged damages sustained while he was incarcerated at the Schoharie County Jail. After service of a summons with notice, defendants served a notice of appearance and demand for complaint on October 17, 2005. After plaintiff failed to serve a complaint, defendants moved on October 18, 2006 for dismissal of the action pursuant to CPLR 3012 (b). Supreme Court granted the motion and plaintiff appeals.

To successfully oppose a motion to dismiss for failing to timely serve a complaint pursuant to CPLR 3012 (b), plaintiff must show a reasonable excuse for the delay and a meritorious cause of action (see Norrish v Pacini, 29 AD3d 1063 , 1063 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705 , 706 [2006]). Affording Supreme Court considerable discretion in evaluating plaintiff’s opposition to defendants’ motion to dismiss (see Brown v Hannaford Bros. Co., 27 AD3d 815 , 816 [2006]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706 ), we find no abuse of discretion in the determination that the excuse for failing to file a complaint—namely that his attorney could not discuss the matter with plaintiff during the one-year delay due to plaintiff being reincarcerated in another county—was unreasonable. Furthermore, as plaintiff did not submit an affidavit or a verified pleading containing evidentiary facts attested by someone with personal knowledge of those facts in opposition to the mo

p. 1099

tion to dismiss, plaintiff failed to demonstrate a meritorious cause of action (see Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904 , 905 [1985]; Amodeo v Gellert & Quartararo, P.C., 26 AD3d at 706 ). Finally, plaintiff cannot avoid the consequences of the acts or omissions of his retained counsel (see Link v Wabash R. Co., 370 US 626 , 633-634 [1962]; Department of Social Servs. v Trustum C.D., 97 AD2d 831 , 831 [1983], lv denied 61 NY2d 605 [1984]), and no right to the effective assistance of counsel is implicated here (see Matter of Chase, 44 AD3d 1180 , 1182 [2007]; Xiaokang Xu v Xiaoling Shirley He, 24 AD3d 862 , 864 [2005], lv denied 6 NY3d 710 [2006]; Olmstead v Federated Dept. Stores, 208 AD2d 979 , 982 [1994], lv denied 85 NY2d 811 [1995]).

Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, without costs.

Cases cited

Norrish v. Pacini 29 AD3d 1063 N.Y. App. Div. 2006-05-04 at 1063 p. 1098
Amodeo v. Gellert & Quartararo, P.C. 26 AD3d 705 N.Y. App. Div. 2006-02-23 at 706 p. 1098
Brown v. Hannaford Bros. 27 AD3d 815 N.Y. App. Div. 2006-03-02 at 816 p. 1098
Kel Management Corp. v. Rogers & Wells 64 NY2d 904 N.Y. 1985-02-07 at 905 p. 1099
Link v. Wabash Railroad 370 US 626 SCOTUS 1962-06-25 at 633-634 p. 1099
Department of Social Services ex rel. Beatrice V. P. v. Trustum C. D. 97 AD2d 831 N.Y. App. Div. 1983-11-28 at 831 p. 1099
Xiaokang Xu v. He 24 AD3d 862 N.Y. App. Div. 2005-12-01 at 864 p. 1099
Olmstead v. Federated Department Stores, Inc. 208 AD2d 979 N.Y. App. Div. 1994-10-13 at 982 p. 1099