In an interesting decision, Kordasiewicz v Bcc Prods., Inc., the Fourth Department considered the issue of whether the lower court should have dismissed the plaintiffs' toxic tort claim. The plaintiffs initiated the action by serving a Summons with Notice and failed to serve a timely Complaint, following the defendants' demand for same. The defendants cross-moved for order dismissing the action as a result of the plaintiffs' failure to serve a timely Complaint pursuant to CPLR s. 3012(b).
The Fourth Department noted that in order to avoid dismissal of the action after a demand for the Complaint has been made, the plaintiff must demonstrate a reasonable excuse for the delay in serving the Complaint and must establish a meritorious cause of action.
The Court held that the plaintiffs failed to establish a meritorious cause of action, since the belatedly served verified Complaint did not specify the toxins to which the plaintiff had been exposed or that had caused his cancer. The Court also concluded that:
(T)he averments of a lay plaintiff cannot serve as the essential showing of the merit ... where, as here, the averments include matters not within the ordinary experience and knowledge of laypersons. Contrary to plaintiffs' contention, the rule requiring an expert's affidavit to establish merit applies to any case in which plaintiffs' claims are not based on matters within the ordinary experience and knowledge of laymen, and thus that requirement is not limited to medical malpractice cases. (Internal citations and quotations omitted).
This appears to be yet another situation in which it would have been advisable to simply serve an unverified Complaint from the get go. There are far too many unforeseen pitfalls encountered when lawyers seek to delay drafting a Complaint by serving a Summons with Notice, as can be seen by the extreme result in this case.
As I understand this holding, the verified expert affidavit, which is required by statute for medical, dental and podiatric malpractice cases pursuant to CPLR 3012-a, is only required at this stage in this case because the plaintiffs served a Summons with Notice and failed to serve a timely Complaint in response to the defendants' demand for the same. In other words, the verified affidavit regarding merit was necessary only because the plaintiffs were required to establish a meritorious cause of action in defense of the defendants' CPLR 3012(b) motion.
To the best of my knowledge, no such affidavit is required at this stage of a toxic tort claim in New York under any other circumstances. However, it's possible that I'm incorrect. If you think I'm wrong in that regard, or if you disagree with my interpretation of this case, feel free to let me know.