Crucilla v. Howe Richardson Scale Co.

80 A.D.2d 575, 435 N.Y.S.2d 789, 1981 N.Y. App. Div. LEXIS 10247

Opinion

In a negligence action to recover damages for personal injuries, defendant Howe Richardson Scale Co., appeals from so much of an order of the Supreme Court, Kings County, dated September 17, 1980, as granted plaintiff’s motion for reargument of the denial of his motion to vacate an order dismissing the complaint and, upon reargument, granted the motion to vacate and imposed $250 costs on plaintiff’s attorney. Order modified, on the law, by deleting therefrom the provisions granting the motion to vacate and imposing costs and substituting therefor a provision adhering to the original determination. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements payable to defendant. Excuses amounting to “law office failure”, as a matter of law, are insufficient to vacate an order dismissing an action for failure to serve and file a note of issue pursuant to CPLR 3216 (Sortino v Fisher, 20 AD2d 25; cf. Barasch v Micucci, 49 NY2d 594). In the absence of a reasonable excuse for the delay, it was error for Special Term to permit plaintiff to proceed against defendant solely on the ground that defendant had not demonstrated any prejudice resulting from the delay (cf. Barasch v Micucci, supra; Verre v Rosas, 47 NY2d 795). Hopkins, J.P., Titone, Rabin and Weinstein, JJ., concur.