Opinion
November 23, 1981
In an action to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Kings County (Brownstein, J.), dated February 21, 1980, which, inter alia, (1) denied its motion to dismiss this action for plaintiff's failure to timely serve a complaint and (2) granted plaintiff's cross motion to compel defendant to accept service of the complaint upon condition that plaintiff's counsel personally pay a penalty to defendant. Order reversed, on the law, with $50 costs and disbursements, motion granted, cross motion denied and action dismissed. The only excuse proffered for failure to timely serve the complaint was that a secretary employed in the office of plaintiff's attorney incorrectly marked the file to the effect that the complaint had been served. An excuse which lays the default at the door of plaintiff's lawyer of record, trial counsel, other associated counsel, or employees of any of the lawyers, comes under the category of so-called "law office failure" (Sortino v. Fisher, 20 A.D.2d 25, 29). In Moran v. Rynar ( 39 A.D.2d 718) we held that, in the exercise of discretion, a defaulting party could be relieved of the consequences of such a law office failure upon the condition that his counsel personally pay a penalty for his neglect, and in this case Special Term followed the approach of Moran so as to save the action for the plaintiff. In Barasch v. Micucci ( 49 N.Y.2d 594) the Court of Appeals held that law office failure was an insufficient excuse as a matter of law. Hopkins, J.P., Damiani, Gibbons and Weinstein, JJ., concur.