Commercial Division Blog
Action Dismissed for Failure Timely to Respond to Demand for Complaint
On February 21, 2017, Justice Platkin of the Albany County Commercial Division issued a decision in Javoroski v. SelectQuote Insurance Service, Inc., 2017 NY Slip Op. 50465(U), dismissing an action because of the plaintiff's failure timely to respond to a demand for a complaint.
In Javoroski, the plaintiff initiated an action by filing a Summons with Notice. Two of the defendants "filed a notice of appearance on September 27, 2016 and demanded service of the complaint." The plaintiff did not serve the complaint until December 14, 2016. The court granted the defendants' motion to dismiss for failure timely to serve a complaint, explaining:
Pursuant to CPLR 3012 (b), plaintiff was required to serve her complaint within twenty days after service of defendants' demand. Plaintiff concedes that she did not comply with that deadline. Thus, to successfully oppose defendants' motion, plaintiff is required to show that she has both a reasonable excuse for the delay and a meritorious cause of action.
Plaintiff's counsel acknowledges that defendants' notice of appearance and demand for the complaint was received on October 3, 2016, but plaintiff did not attempt to serve a complaint until December 14, 2016. Plaintiff's attorney explains that the delay was due, in part, to a need to conduct further research to ascertain the identity of the correct defendant or defendants. He states that his extensive research disclosed five different entities that included SelectQuote in their names and that Charan J. Singh was affiliated with one or all of the SelectQuote entities.
Counsel further explains that, after receiving defendants' notice of appearance, he renewed his research so that he could ascertain whether the appearing SelectQuote entity was, in fact, the entity that sold the life insurance policy to plaintiff's husband. In doing so, he removed the notice of appearance from the incoming mail resulting in the 20 day notice deadline not being diaried. According to plaintiff's attorney, this law office failure was not discovered until he received defendants' motion to dismiss.
For their part, defendants reject plaintiff's characterization of the delay as short. They note that the complaint was served 79 days after defendants' demand and 118 days after service of the summons with notice. Defendants also submit proof that their moving papers were delivered to plaintiff on November 29, 2016, but the attempted service of the complaint did not occur for an additional two weeks.
Defendants also argue that the excuse for the delay proffered by plaintiff's attorney — that research was required to find the correct defendant — is not reasonable. According to defendants, the notice of appearance and demand for a complaint plainly identifies SelectQuote Insurance Services as the correct entity name, which negated any need for research into its name. Defendants also challenge the claim of plaintiff's counsel that lingering doubt about the identify of the proper defendants prevented him from timely filing and serving a complaint, observing that the complaint served in December 2016 pleads identical, repetitive allegations against all five iterations of SelectQuote's name listed in the caption of the summons. As such, defendants argue, it was not necessary for the plaintiff to identify the correct corporate name to prepare the Complaint, and any confusion over SelectQuote's name is simply a pretext for the plaintiff's inexplicable failure to meet the deadline.
Even if plaintiff's attorney had a legitimate need to research the name of the correct corporate entity, it did not absolve plaintiff of the obligation to serve a duly demanded complaint within the time allowed by statute. Further, as defendants point out, the complaint that plaintiff ultimately attempted to serve was not limited to allegations against the correct SelectQuote defendant. Thus, this does not seem to be a case where plaintiff lacked sufficient information at the time when the summons was served to assert the general allegations that eventually were put into her complaint.
(Internal quotations and citations omitted).