Fennessy v. Mack ( 1973 )

Order, Supreme Court, New York County, entered on May 30, 1973, denying a motion pursuant to CPLR 3012 (subd. [b]) to dismiss for failure to serve a complaint, unanimously affirmed, on condition that plaintiff’s attorney personally pay to the defendant-appellant Robert C. Mack, Jr., the sum of $250 plus $40 costs and disbursements of this appeal within 20 days after he has been served by said defendant with a copy of the bill of costs to be taxed hereunder. In the event that said condition is not complied with, then the order is unanimously reversed, on the law and in the exercise of discretion, and the motion granted, and defendant-appellant shall recover of plaintiff-respondent $40 costs and disbursements of this appeal. Approximately one year elapsed between the demand for service of a complaint and the actual service thereof. The defendant’s motion to dismiss for failure to serve a complaint prompted such service before the return day of the motion. The plaintiff, a passenger in an automobile, suing both the operator and the driver of another vehicle because of a collision, should not be required-to suffer the consequences of his attorney’s conduct, and the imposition of the above costs on counsel personally is a more appropriate penalty than a dismissal for failure to serve a complaint as required. Concur — Stevens, P. J., McGivern, Markewich, Kupferman and Murphy, JJ.