Solomon v. County of Oswego

302 A.D.2d 881, 753 N.Y.S.2d 786, 2003 N.Y. App. Div. LEXIS 1141

Opinion

Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered November 13, 2001, which, inter alia, granted plaintiff’s cross motion to extend the time in which to serve the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs to defendants.

Memorandum: Supreme Court did not abuse its discretion in granting plaintiff’s cross motion to extend the time in which to serve the complaint pursuant to CPLR 3012 (d) and, in the event plaintiff failed to serve the complaint as directed, in granting defendants’ motion to dismiss the action for failure to timely serve the complaint. Plaintiff tendered a sufficient affidavit of merit in support of his cross motion, and the court properly exercised its discretion in the interests of justice in excusing plaintiffs delay resulting from law office failure (see CPLR 2005; cf. Grant v City of N. Tonawanda, 225 AD2d 1089). Although we see no reason to disturb the court’s determination, given the length of time that plaintiffs counsel delayed in filing the complaint, we hereby grant defendants costs on this appeal (see CPLR 8107; see also 8108). Present — Green, J.P., Hurlbutt, Burns, Gorski and Hayes, JJ.