Aggressive Defense Achieves Case Dismissal Without Filing Answer

By Thomas M. Bona.

Attention to detail and thoroughness are hallmarks of PMT’s case defense and allow us to give our clients early results, which saves years of litigation, defense costs, and settlement dollars. A recent case shows how we do this.

While researching court filings in a related case where we represented the same defendants, PMT discovered another plaintiff had commenced an action against our insureds from the same accident.

In New York, after commencing an action by filing a summons and complaint, a plaintiff must serve the defendants by any method prescribed under the civil practice law and rules within 120 days of the date it commenced the action. The Court may extend the time for service upon good cause shown or in the interest of justice.

In this latest case, Ramirez v. Powell, (Bronx County, NY Index No.: 801247/2021E – PMT: Automobile and General Liability), the plaintiff had filed the summons and complaint in January 2021 for injuries allegedly caused by an accident in March 2019. The plaintiff attempted to serve our insureds, the owner and driver, several times. When the plaintiff was unsuccessful, he moved to serve the defendants, which was denied as he failed to serve all interested parties. The plaintiff then refiled the motion and, in addition to serving the defendants, requested that he be allowed to serve the insurance company and extend the plaintiff’s time to file proof of service for an additional 120 days. PMT discovered that the plaintiff’s motion had already been submitted to the Court and was awaiting a decision. Without opposition, the Court would grant the motion. PMT immediately went to work opposing the motion.

We opposed the plaintiff’s motion and cross-moved for an order denying the plaintiff’s motion for substituted service and dismissing the complaint on the grounds that the plaintiff had not completed service of process upon the defendants within 120 days of filing the complaint’s summons as required. The plaintiff opposed the motion.

PMT argued that the plaintiff had failed to show that they had made reasonably diligent efforts to effectuate service of process within the time required by law, as their first attempts to serve the defendants were approximately a year after the 120-day timeframe had expired. We argued the plaintiff also failed to show that this was a meritorious cause of action as he attached only the summons, complaint, and police report to his motion.

The Court agreed. The Bronx Supreme Court found that the plaintiff first moved for an extension of time in July 2022, four months after the statute of limitations had run and over 18 months after filing their complaint when the plaintiff filed the second motion, which added the insurance company for service, The Court found the plaintiff had failed to submit evidence showing that this was a meritorious cause of action and that the defendants were never made aware of this pending action before the second motion despite plaintiff’s counsel filing another action for a different plaintiff arising from the same accident where service was completed and where we represented the same defendants. The Court noted that because the defendants had no notice of the plaintiff’s claim in this action for nearly two years after the complaint was filed, there was an inference of substantial prejudice, which the plaintiff had failed to rebut. The Court found that the plaintiff had failed to offer a reasonable explanation or excuse for his failure to be reasonably diligent and attempt service within the required 120-day period following the filing of the initial summons and complaint. In addition, the plaintiff had failed to explain its delay in moving for an extension of time to serve immediately after the 120-day period had expired.

By aggressively defending this action and making a motion immediately to dismiss the case, we successfully saved our client’s time and money in Bronx County, a well-known plaintiff-friendly venue. Let PMT show you how we can achieve that for you.

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Should you have any questions, please call our office at (914) 703-6300 or contact:

Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com

Jeffrey D. Schulman, Executive Partner
jschulman@pmtlawfirm.com

Thomas M. Bona, Partner
tbona@pmtlawfirm.com