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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: May 2, 2015

Failure to Justify Untimely Service of Complaint Results in Dismissal

On April 22, 2015, the Second Department issued a decision in J L Collier Corp. v. Wells Fargo Bank, Natl. Assn., 2015 NY Slip Op. 03326, holding that an action should have been dismissed for failure timely to serve a complaint.

In J L Collier Corp., the trial court denied the defendant’s motion to dismiss for failure timely to serve a complaint. The Second Department reversed the trial court and dismiss the action as to the appellant, explaining:

CPLR 3012(b) provides that if the complaint is not served with the summons, service of the complaint shall be made within 20 days after service of a demand for a complaint. In order to avoid dismissal for failure to timely serve a complaint, the plaintiff must demonstrate a reasonable excuse for the delay. Here, the plaintiffs failed to proffer a reasonable excuse for their failure to timely serve a complaint upon [the defendant] within 20 days after [it] served a demand for the complaint.

(Internal quotations and citations omitted) (emphasis added). This decision illustrates that even when a motion involves procedural defaults regarding which courts are lenient, a litigant who does not go to the trouble of giving a well laid out reason for a procedural default runs the risk of losing the motion–and the action.

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