Lisojo v. Phillip

Dec 10, 1992
Versions:188 A.D.2d 369
591 N.Y.S.2d 40
1992 N.Y. App. Div. LEXIS 13747

Order, Supreme Court, Bronx County (Anita Florio, J.), entered January 8, 1992, granting defendant Pritchard Industries’ motion to dismiss the complaint pursuant to CPLR 3012 (b) only to the extent of imposing $100 costs upon plaintiff, unanimously affirmed, without costs.

Consonant with the spirit and purpose of CPLR 3012 (d), the IAS Court properly excused plaintiff’s failure to serve a complaint in response to a demand therefor in the absence of any prejudice to movant (Talley v Montefiore Hosp., 167 AD2d 231). The verified complaint satisfies the requirement that an affidavit of merit must be submitted in opposition to a motion to dismiss for failing to answer a demand for a complaint (see, Salch v Paratore, 60 NY2d 851). Further, the court is not precluded, as a matter of law, from exercising its discretion to excuse a default resulting from law office failure (CPLR 2005; see, Rivera v 101 W. 12th St. Garage Corp., 111 AD2d 622), which is the excuse proffered by plaintiff. Concur — Milonas, J. P., Wallach, Asch and Rubin, JJ.