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

970
CA 13-01004
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


JOHN A. MCINTOSH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GENESEE VALLEY LASER CENTRE AND HOLLY B.
HAHN, M.D., DEFENDANTS-RESPONDENTS.


JOHN A. MCINTOSH, PLAINTIFF-APPELLANT PRO SE.

HIRSCH & TUBIOLO, P.C., ROCHESTER (BRYAN KORNFIELD OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered February 22, 2013. The order granted the
motion of defendants to dismiss the action.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order granting defendants’
motion to dismiss the action based on the failure of plaintiff to
comply with their demand for service of a complaint pursuant to CPLR
3012 (b). We affirm. “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” (Berges v Pfizer, Inc., 108 AD3d 1118, 1119 [internal
quotation marks omitted]).

     “It is generally within the sound discretion of [Supreme Court]
to determine what constitutes a reasonable excuse for the delay in
serving the complaint” (Mitchell v Erie County Med. Ctr. Corp., 70
AD3d 1408, 1408-1409, lv dismissed 14 NY3d 881 [internal quotation
marks omitted]; see Kordasiewicz v BCC Prods., Inc., 26 AD3d 853,
854). Here, defendants served plaintiff with a demand for service of
a complaint one week after plaintiff served defendants with a summons
with notice. Upon plaintiff’s failure to serve a complaint by the
applicable deadline (see CPLR 3012 [b]; see also CPLR 2103 [b] [2]),
defendants moved to dismiss the action pursuant to CPLR 3012 (b). We
conclude that plaintiff failed to provide any reasonable excuse for
the delay (see generally Fasano v J.C. Penney Corp., 59 AD3d 1102,
1102). Plaintiff’s contention that he served a complaint upon
defendants’ attorney by mail is unsubstantiated by the record, and
plaintiff’s reliance in his reply brief on purported conversations
                                 -2-                           970
                                                         CA 13-01004

between himself and defendants’ attorney to support his contention
that he served a complaint is improper inasmuch as such conversations
are outside the record on appeal (see Britt v Buffalo Mun. Hous.
Auth., 109 AD3d 1195, 1197). Plaintiff failed to establish at a court
appearance that he filed or served a complaint, and his claims
concerning such filing or service are belied by a subsequent letter in
which he requested permission from the court to serve a late complaint
upon defendants’ attorney. Moreover, the record contains neither a
copy of the alleged complaint nor proof of service (cf. Dunlop v Saint
Leo the Great R.C. Church, 109 AD3d 1120, 1121, lv denied 22 NY3d
858). Plaintiff asserts in his reply brief that the record on appeal
failed to include the “original complaint,” which he alleges was
attached to a second handwritten letter that he faxed to the court.
Even assuming, arguendo, that plaintiff’s assertion is accurate and
properly before us, it is the obligation of the appellant to assemble
a proper record on appeal (see 22 NYCRR 1000.4 [a]; Mergl v Mergl, 19
AD3d 1146, 1147; see also CPLR 5526). Plaintiff, the appellant
herein,“ ‘submitted this appeal on an incomplete record and must
[therefore] suffer the consequences’ ” (Polyfusion Electronics, Inc. v
AirSep Corp., 30 AD3d 984, 985).

     In any event, we conclude that plaintiff failed to establish a
meritorious cause of action. “A meritorious cause of action may be
established by way of ‘an affidavit of merit containing evidentiary
facts sufficient to establish a prima facie case’ ” (Berges, 108 AD3d
at 1119, quoting Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905;
see Tonello v Carborundum Co., 91 AD2d 1169, 1170, affd 59 NY2d 720,
rearg denied 60 NY2d 587), or with a verified complaint (see Berges,
108 AD3d at 1119; see also CPLR 105 [u]; A & J Concrete Corp. v Arker,
54 NY2d 870, 872; Kordasiewicz, 26 AD3d at 855). Here, plaintiff
submitted neither. Plaintiff’s assertion in his reply brief that he
recently obtained assurances that his action is meritorious from the
doctor who diagnosed and treated his condition is not properly before
us because those alleged assurances are outside the record on appeal
and, in any event, do not constitute an affidavit of merit.
“[P]laintiff[’s] failure to demonstrate the merit of [the cause of
action] in response to the CPLR 3012 (b) motion . . . compels the
unconditional dismissal of [the] action” (Kordasiewicz, 26 AD3d at 855
[internal quotation marks omitted]), and it would have been reversible
error for the court to hold otherwise (see Kel Mgt. Corp., 64 NY2d at
905; Fasano, 59 AD3d at 1102).

     Finally, to the extent plaintiff contends that the court erred in
denying his request for an additional adjournment, we conclude that
the court did not abuse or improvidently exercise its discretion (see
Pitts v City of Buffalo, 19 AD3d 1030, 1030).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
