Ryder Truck Rental, Inc. v. Lewis

88 A.D.2d 788, 451 N.Y.S.2d 534, 1982 N.Y. App. Div. LEXIS 17049

Opinion

— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The rule in Barasch v Micucci (49 NY2d 594) requires the unconditional dismissal of this action for failure to serve a complaint (CPLR 3012, subd [b]). The attorney’s allegation of illness was unsupported by medical documentation and no explanation was given why he did not recommend that other counsel be retained (see Wolfe v Town of Hempstead, Dept, of Parks & Recreation, 75 AD2d 811; see, also, Premo v Cornell, 83 AD2d 981; Catón v Schenectady Gazette, 82 AD2d 949). The bulk of the delay appears to have been caused by a shortage of secretarial staff. This explanation falls within the category of “law office failure” (see City of New York v Ingber, 80 AD2d 773). (Appeal from order of Supreme Court, Oneida County, Stone, J. — dismiss complaint.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.