Opinion
December 10, 1992
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
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 A.D.2d 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 N.Y.2d 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 A.D.2d 622), which is the excuse proffered by plaintiff.
Concur — Milonas, J.P., Wallach, Asch and Rubin, JJ.