Supreme Court, Kings County, June 19, 2018

Gerard J. White, P.C., Malverne (Gerard J. White of counsel), for defendants.

James Antoine, plaintiff pro se.

On June 23, 2017, Antoine commenced an action against defendants by filing a summons with notice in the Kings County Clerk's Office (hereinafter KCCO) (see CPLR 304 [a]; 305 [b]). On November 8, 2017, plaintiff filed an affidavit of service with the KCCO demonstrating personal service of the summons with notice upon the defendants. On November 7, 2017, defendants served a demand for complaint upon the plaintiff via certified mail return receipt pursuant to CPLR 3012 (b). Plaintiff served a verified complaint on December 6, 2017. Defendants then served a notice of rejection of the complaint as untimely on December 12, 2017.

In the instant motion, the defendants seek to dismiss plaintiff's complaint pursuant to CPLR 3012 (b) and 3211 (a) (1), (5), and (7) with prejudice. Antoine submitted opposition to defendants' motion.

CPLR 304 (a) states in pertinent part that "[a]n action is commenced by filing a summons and complaint or summons with notice in accordance with rule twenty-one hundred two of this chapter." CPLR 305 (b) states that

"[i]f the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the [*2]relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default."

CPLR 308 (4) permits service by "affix and mail" only where personal delivery or delivery to a person of suitable age and discretion "cannot be made with due diligence" (see Sinay v Schwartzman, 148 AD3d 1068, 1070 [2d Dept 2017]). "The requirement of due diligence must be strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308 (4)" (Serraro v Staropoli, 94 AD3d 1083, 1084 [2d Dept 2012] [internal quotation marks omitted], citing Kaszovitz v Weiszman, 110 AD2d 117, 120 [2d Dept 1985]).{**60 Misc 3d at 350}

In the instant motion, defendants have not claimed any procedural defects with the service of the summons with notice pursuant to CPLR 308 (4). The annexed affidavit to defendants' motion acknowledges that on October 20, 2017, they became aware of plaintiff's summons with notice. Defendants, however, seek dismissal of the instant action for untimely service of the complaint pursuant to CPLR 3012 (b). CPLR 3012 states in pertinent part as follows:

"(b) Service of complaint where summons served without complaint. If the complaint is not served with the summons, the defendant may serve a written demand for the complaint within the time provided in subdivision (a) of rule 320 for an appearance. Service of the complaint shall be made within twenty days after service of the demand. Service of the demand shall extend the time to appear until twenty days after service of the complaint. If no demand is made, the complaint shall be served within twenty days after service of the notice of appearance. The court upon motion may dismiss the action if service of the complaint is not made as provided in this subdivision. A demand or motion under this subdivision does not of itself constitute an appearance in the action."

It is well established that service made pursuant to CPLR 308 (4) by "affix and mail" is completed 10 days after the proof of service is filed with the clerk of the court (see CPLR 308 [4]; Alexander, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR C308:5). However, CPLR 3012 (b) allows a defendant to serve a demand for a complaint after being served, even though service may not technically be completed (see CPLR 3012 [b]; see also Connors, Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3012:10, citing Wimbledon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC, 150 AD3d 427, 428 [1st Dept 2017]). "The time frames applicable to defendants set forth in CPLR 3012 (b) are deadlines, not mandatory start dates" (Wimbledon Fin. Master Fund, Ltd., 150 AD3d at 428).

Nevertheless, CPLR 3012 (b) makes no provision for an appearance or a demand for a complaint before the summons is served (Ryan v High Rock Dev., LLC, 124 AD3d 751, 752 [2d Dept 2015]). Consequently, a demand for a complaint made prior to service of the summons would be deemed premature and a nullity which would not invoke the time limitations of CPLR 3012 (b) (see Ryan, 124 AD3d at 752).{**60 Misc 3d at 351}

Here, the defendants were served with a summons with notice pursuant to CPLR 308 (4). Plaintiff filed the affidavit of service on November 8, 2017.^[FN*] Prior to the completion of service, defendants served a permissible notice of appearance and demand for a complaint on November 7, 2017 (see Connors, Supp Practice Commentaries, [*3]McKinney's Cons Laws of NY, CPLR C3012:10). However, since the demand was made via certified mail on November 7, 2017, the demand is deemed served on November 12, 2017.

"[W]hen the period in which to take a responsive step is measured from the service of a paper that may be and has been served by mail, such as the defendant[s]' demand for a complaint under CPLR 3012(b), which is almost always served by mail, the five days are added: the 20-day period in which to serve the complaint therefore becomes 25 days. CPLR 2103(b)(2)" (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3012:17).

This demand then triggered Antoine's time to serve the complaint within 20 days of the completed service of the demand (see id.). Accordingly, when Antoine served the complaint four days late via priority mail on December 5, 2017, with an expected delivery date on December 6, 2017, service was untimely.

"To avoid dismissal of [an] action for failure to 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 potentially meritorious cause of action" (Telian v Freund, 129 AD3d 828, 828 [2d Dept 2015], quoting Carducci v Russell, 120 AD3d 1375, 1375-1376 [2d Dept 2014]). Here, Antoine's opposition papers fail to address the service issue or offer any explanation for the delay (see Telian, 129 AD3d 828). Since plaintiff failed to offer a reasonable excuse, it is not necessary to consider whether he demonstrated a potentially meritorious cause of action (see Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 969 [2d Dept 2016]). Therefore, plaintiff is unable to avoid the dismissal of his action.

However, a dismissal of a plaintiff's action pursuant to CPLR 3012 does not constitute a dismissal on the merits (see Sotirakis{**60 Misc 3d at 352} v United Servs. Auto. Assn., 100 AD2d 931, 931 [2d Dept 1984]). Defendants' request for a dismissal of the action pursuant to CPLR 3012 (b) is granted.

Inasmuch as the complaint is dismissed the court need not reach the defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a).

Defendants Gerard J. White and Gerard J. White, P.C.'s motion to dismiss the plaintiff Antoine James' complaint pursuant to CPLR 3012 (b) is granted.