Mitchell v Erie County Med. Ctr. Corp.

Mitchell v Erie County Med. Ctr. Corp. 2010 NY Slip Op 01211 [70 AD3d 1408] February 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Pamela Mitchell, as Executrix of Sarah Fincher, Deceased, Appellant, v Erie County Medical Center Corporation, Respondent.

—[*1] Brown Chiari LLP, Lancaster (David W. Olson of counsel), for plaintiff-appellant.

Cheryl A. Green, County Attorney, Buffalo (Ruthanne Wannop of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered November 19, 2008 in a wrongful death action. The order granted the motion of defendant to dismiss the complaint.

It is hereby ordered that the order so appealed from is unanimously reversed in the exercise of discretion without costs, the motion is denied and the complaint is reinstated.

Memorandum: Plaintiff appeals from an order in which Supreme Court granted the motion of defendant seeking to dismiss the complaint pursuant to CPLR 3012 (b) based on plaintiff's failure to serve the complaint in a timely manner in response to its notice of appearance and demand for complaint. In order to defeat the motion, plaintiff was required to "demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action . . . It is generally within the sound discretion of the court to determine what constitutes a reasonable excuse for the delay in serving the complaint . . . , and the court has the discretion to excuse delay based on law office failure" (Kordasiewicz v BCC Prods., Inc., 26 AD3d 853, 854 [2006] [internal quotation marks omitted]). We conclude that the court improvidently exercised its discretion in granting the motion and dismissing the complaint where, as here, the 12-day delay in serving the complaint was the result of law office failure (see Nolan v Lechner, 60 AD3d 473 [2009]), and plaintiff's notice of claim established that plaintiff has a meritorious cause of action (cf. Kordasiewicz, 26 AD3d at 855; see generally Guzetti v City of New York, 32 AD3d 234 [2006]). Present—Scudder, P.J., Fahey, Lindley and Green, JJ.