Practice point: The Appellate Division affirmed the dismissal for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b). The plaintiff was no longer acting in a pro se capacity when the defendants uploaded the notice of appearance and demand to the NYSCEF system. The plaintiff's purported reasonable excuse that the failure to serve the complaint was a "technical glitch" of the NYSCEF system is unavailing. The defendants' notice of appearance and demand remained in the e-filing system for over one year, during which time the plaintiff was represented by counsel, before the plaintiff served a proposed complaint on them. The Appellate Division determined that this is not a mere technical glitch, but law office failure, which has been held not to constitute a reasonable excuse under CPLR 3012(b).
Student note: To avoid dismissal of the 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.
Case: Carducci v. Russell, NY Slip Op 06290 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: The Labor Law § 740(7) election of remedies provision in a retaliation action.