If you commence an action by way of summons with notice, you must bear in mind the strict time limitations imposed by CPLR 3012(b). When the other party timely serves a written demand for a complaint, you have exactly twenty (20) days from service of the demand to serve the complaint. This is a strict, statutory deadline that should be calendared immediately upon receipt of the demand. If a litigant fails to serve a complaint within the twenty-day period, the action could be dismissed.
This is precisely what occurred in Javoroski v. SelectQuote Ins. Service, Inc., et al., 2017 N.Y. Slip Op 50465(U)(Sup Ct, Albany County Feb. 21, 2017). Ms. Javoroski commenced an action against SelectQuote and other defendants by serving a summons with notice. The summons with notice indicated that Ms. Javoroski would be alleging, among other things, breach of contract as a result of defendants’ alleged failure to pay life insurance proceeds following the death of plaintiff’s husband. Shortly after plaintiff served the summons with notice, defendants SelectQuote and Charan Singh (“Singh”) filed a notice of appearance and demanded service of the complaint. When plaintiff did not serve the complaint within the twenty-day deadline imposed by CPLR 3012(b), Defendants moved to dismiss the action. Ms. Javoroski cross-moved for an extension of time to complete service, claiming that she had both a reasonable excuse for the delay and a meritorious claim.
First, Plaintiff’s counsel argued that his delay in serving the complaint was due to his need to “conduct further research to ascertain the identity of the correct defendant or defendants.” According to Plaintiff, there were multiple entities that included “SelectQuote” in their names and Singh was affiliated with all of them.
Next, Plaintiff’s counsel explained that, upon receiving Defendants’ notice of appearance in the mail, he undertook additional research in order to ascertain whether the appearing SelectQuote was in fact the entity that sold the life insurance policy to Plaintiff’s late husband. Notably, Plaintiff’s attorney admitted that the 20-day notice deadline was never calendared as a result of a “law office failure.”
Defendants pointed out that Plaintiff’s delay in serving the complaint was anything but short. In fact, Plaintiff served her complaint 79 days after Defendants’ demand, 118 days after service of the summons with notice, and two full weeks after Defendants served their motion to dismiss.
Defendants further argued that the excuse for the delay proffered by Plaintiff’s attorney was unreasonable because the notice of appearance identified the correct defendant and hence, there was no need for additional research.
Defendants also pointed out that the complaint pled identical, repetitive allegations against all five SelectQuote entities and hence, it was not necessary for Plaintiff to identify the correct corporate name in order to prepare the complaint.
The Court agreed with Defendants, finding that Plaintiff’s purported excuses were unreasonable under the circumstances. Importantly, the Court noted that “[e]ven 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.”
Additionally, the Court noted that the complaint Plaintiff finally served “was not limited to allegations against the ‘correct’ SelectQuote defendant” and hence, Plaintiff had all of the necessary information at the time the summons was served to assert the general allegations that were ultimately put into her complaint.
Finally, the Court found that Plaintiff’s affidavit of merit fell “well short” of establishing her prima facie case, and dismissed the action.
Moral of the story? Calendar your deadlines – especially the statutory ones.