Opinion
May 21, 1982
Appeal from the Supreme Court, Oneida County, Stone, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The rule in Barasch v. Micucci ( 49 N.Y.2d 594) requires the unconditional dismissal of this action for failure to serve a complaint (CPLR 3012, subd [b]). The attorney's allegation of illness was unsupported by medical documentation and no explanation was given why he did not recommend that other counsel be retained (see Wolfe v. Town of Hempstead, Dept. of Parks Recreation, 75 A.D.2d 811; see, also, Premo v. Cornell, 83 A.D.2d 981; Caton v Schenectady Gazette, 82 A.D.2d 949). The bulk of the delay appears to have been caused by a shortage of secretarial staff. This explanation falls within the category of "law office failure" (see City of New York v. Ingber, 80 A.D.2d 773).