The following papers were considered on the motion by defendant Westchester County to dismiss the action as against it for failure to serve a complaint upon demand pursuant to CPLR 3012(b): Papers Numbered Notice of Motion, Affirmation, Exhibits A-D 1 Affirmation in Opposition, Exhibits A-B 2 Reply Affirmation, Exhibit E 3 DECISION and ORDER In the notice of claim served by plaintiff Justin Parker Malfetano in this matter, he alleges that on May 2, 2018, at approximately 6:00 p.m., he was unlawfully stopped and detained while driving on the Hutchinson River Parkway in Harrison, New York. He commenced this action by filing a summons with notice on July 30, 2019, indicating that he seeks damages for personal injury, wrongful arrest, defamation and other listed tort theories. On August 21, 2019, defendant Westchester County served by mail a Demand for Service of the Complaint. When no complaint was served within the required time frame, defendant brought the current motion, by notice of motion filed September 23, 2019, seeking dismissal of the action based on plaintiff’s failure to serve a timely complaint in response to the demand; its affidavit of service by mail of the demand is annexed as an exhibit to its moving papers. In opposition, plaintiff submits the affirmation of his attorney, who asserts that he did not receive the Demand for Service of Complaint that is said to have been served on him by mail; rather, he states, he first saw the Demand as an exhibit to the moving papers. He then served a complaint on October 9, 2019, which he filed on October 10, 2019, and submits as an exhibit to the opposition. In reply, defendant contends that the asserted non-receipt of the mailing does not constitute a reasonable excuse for failing to timely serve a complaint. It adds that plaintiff has not established a meritorious claim. Discussion The statute upon which defendant relies, CPLR 3012 (b), provides that “If the complaint is not served with the summons, the defendant may serve a written demand for the complaint within the time provided in subdivision (a) of rule 320 for an appearance. Service of the complaint shall be made within twenty days after service of the demand. Service of the demand shall extend the time to appear until twenty days after service of the complaint…. The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision” (emphasis added). Although “[a] motion to dismiss for failure to serve a complaint is addressed to the court’s discretion” (Wells v. Chrysler Motors Corp., 36 AD2d 834 [2d Dept 1971]), based on the statute’s use of the term “may,” nonetheless case law makes clear that the court’s discretion is not broad enough to deny a defendant’s motion pursuant to CPLR 3012 (b) where the plaintiff failed to demonstrate a reasonable excuse for the delay and a meritorious cause of action (see e.g. Snyder v. Blinder, 230 AD2d 728, 728-729 [2d Dept 1996]). Indeed, the Second Department has repeatedly held that “[t]o avoid dismissal of an action for failure to 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 potentially meritorious cause of action” (see Mazzola v. Village Hous. Assoc., LLC, 164 AD3d 668, 669 [2d Dept 2018] and cases cited therein). The Court in Mazzola v. Village Hous. Assoc. reversed the motion court’s denial of the defendant’s CPLR 3012 (b) motion, and dismissed the action, rejecting the plaintiff’s excuse that his counsel did not receive the demand for the complaint that was served upon him by regular mail (id.). That decision, however, is not directly controlling in the present case, since the Court’s dismissal of the action there was not based on the affidavit of mailing; rather, it concluded that the excuse of non-receipt of the mailing was unreasonable because the action had been commenced by e-filing, so that in any event plaintiff would have received an email notification of the uploaded demand for a complaint, in addition to the copy served by regular mail (id.) Here, in contrast to the circumstances in Mazzola, plaintiff opted out of the e-filing system, and accordingly, would not have gotten email notice of the demand for a complaint. Therefore, defendant’s motion to dismiss based on plaintiff’s failure to timely serve his complaint turns on whether the assertion of non-receipt of a mailing is sufficient to alone establish a reasonable excuse for the delay. That question was not addressed in the Mazzola decision, or in any other Second Department decision cited by defendant or found by this Court. However, the question has been clearly addressed by the Fourth Department, which has held that the assertion of non-receipt of a mailing is insufficient to alone establish a reasonable excuse for the delay (see Dunlop v. Saint Leo The Great R.C. Church, 109 AD3d 1120 [4th Dept 2013]). In Dunlop, “plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint,” and the Court concluded that “that excuse is not reasonable” (id. at 1121, citing Imperiale v. Prezioso, 4 Misc 3d 716, 719-720 [Sup Ct, Bronx County 2004] [Dianne Renwick, J.). It reasoned that "[s]ervice 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 NY2d 118, 122 [1999]). We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption” (Dunlop v. Saint Leo The Great R.C. Church, 109 AD3d at 1121). That statement of law by the Fourth Department is binding on this Court in the absence of a contrary ruling by the Second Department (see Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664 [2d Dept 1984]). Accordingly, the assertion by plaintiff’s counsel that he did not receive defendant’s demand for a complaint does not establish the requisite reasonable excuse for the delay. Moreover, plaintiff has not demonstrated the existence of a meritorious claim. While a verified complaint may evidence the existence of a meritorious claim (see Anderson v. Ariel Servs., Inc., 93 AD3d 525, 525 [1st Dept 2012]), that is so only where the verified complaint “sets forth sufficient facts establishing a meritorious claim” (see Jones v. Bims Realty Corp., 2003 NY Misc. LEXIS 619, *1 [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2003]). For instance, in Anderson, the complaint alleged that plaintiff was injured when she was struck by defendants’ vehicle while crossing the street in a crosswalk, with the right of way (93 AD3d at 525). Here, in contrast, the allegations of the belatedly-served and -filed verified complaint are conclusory, and lack specific facts by which any preliminary assessment of potential merit can be made. Accordingly, it is hereby ORDERED that defendant’s motion to dismiss the action pursuant to CPLR 3012 (b) is granted. This constitutes the Decision and Order of the Court. Dated: December 9, 2019 White Plains, New York
