Opinion
May 3, 1982
In a negligence action to recover damages for personal injuries, etc., defendants Grammas and Economou and defendant Village of Valley Stream appeal from so much of an order of the Supreme Court, Nassau County (Altimari, J.), dated July 14, 1981, as conditionally denied their motions pursuant to CPLR 3216 (subd [b]) to dismiss the complaint as to them. Order reversed, insofar as appealed from, on the law, with one bill of $50 costs and disbursements to appellants Grammas and Economou, and motions to dismiss granted. Plaintiffs' claim that they were waiting for an updated medical report before serving their note of issue is unacceptable because the note of issue was subsequently served without the report and because there was no reason, if the medical report was crucial, why counsel could not have taken steps to extend the time to make service. The record reveals simple law office failure blamed on a medical office. Special Term abused its discretion by refusing to unconditionally grant the motions (see Crucilla v. Howe Richardson Scale Co., 80 A.D.2d 575; Barasch v. Micucci, 49 N.Y.2d 594). Weinstein, J.P., O'Connor, Thompson and Boyers, JJ., concur.