        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

865
CA 13-00129
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


EVA E. DUNLOP, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SAINT LEO THE GREAT R.C. CHURCH,
DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF
COUNSEL), FOR DEFENDANT-APPELLANT.

KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered June 28, 2012. The order, insofar as appealed
from, denied the motion of defendant Saint Leo the Great R.C. Church
to dismiss the action.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
and the action against defendant Saint Leo the Great R.C. Church is
dismissed.

     Memorandum: Plaintiff commenced this personal injury action by
filing a summons with notice on the last day of the relevant statute
of limitations. In response, Saint Leo the Great R.C. Church
(defendant) mailed to plaintiff’s counsel a notice of appearance and
demand for the complaint pursuant to CPLR 3012 (b). When plaintiff
failed to comply with defendant’s demand for the complaint, defendant
moved to dismiss the action. Supreme Court denied the motion, and
defendant appeals.

     We conclude that the court erred in denying the motion. “To
avoid dismissal for failure to timely 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 meritorious cause of action” (Kordasiewicz v BCC
Prods., Inc., 26 AD3d 853, 854 [internal quotation marks omitted]).
Here, plaintiff failed to meet her burden with respect to either prong
of that test. Concerning the first part of the test, plaintiff
asserted that she delayed in filing the complaint because she did not
receive defendant’s demand for the complaint. In our view, that
excuse is not reasonable (see Imperiale v Prezioso, 4 Misc 3d 716,
719-720). Service of the demand for the complaint was complete upon
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                                                         CA 13-00129

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). We agree with defendant that plaintiff’s
mere denial of receipt of the demand was insufficient to rebut that
presumption (see id.; Engel v Lichterman, 62 NY2d 943, 944–945; cf.
Vita v Heller, 97 AD2d 464, 464-465). Even assuming, arguendo, that
nonreceipt of the demand was a reasonable excuse, we conclude that
plaintiff failed to establish a meritorious cause of action with a
verified complaint or an affidavit of merit, and thus dismissal of the
action is required (see CPLR 3012 [b]; Kel Mgt. Corp. v Rogers &
Wells, 64 NY2d 904, 905).




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
