Wednesday, March 9, 2016

Motions to renew and to dismiss for failure to timely serve a complaint.

Practice point:  The Appellate Division affirmed the granting of that branch of plaintiff's motion which was for leave to renew his opposition to the motion to dismiss for failure to timely serve the complaint, finding that plaintiff's excuse of law office failure was reasonable under the circumstances.

The Appellate Division also found that, upon renewal, and considering all the circumstances of this case, the CPLR 3012(b) motion was properly denied..Plaintiff proffered a reasonable excuse for his delay in serving the complaint after being served with a notice of appearance and demand for a complaint, and established that he had a potentially meritorious cause of action.

Student note:  While a motion for leave to renew generally must be based on newly-discovered facts, the requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion. What is considered a reasonable justification is within the Supreme Court's discretion, and  law office failure can be accepted as a reasonable excuse..

Case:  Castor v. Cuevas, NY Slip Op 01456 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  Thrown from a horse, and a loss on summary judgment.