Hefte v. Bellin ( 1982 )

— Order, Supreme Court, New York County (Blangiardo, J.), entered April 21,1981, which denied defendants-appellants’ motion to dismiss the complaint for failure to serve a timely complaint, unanimously modified, on the law and the facts and in the exercise of discretion, by adding provision thereto conditioning the denial of the motion upon the payment by plaintiff’s attorneys personally to each moving defendant of $500 within 20 days after service upon said attorneys of a copy of the order to be made hereon, together with notice of entry thereof, and, as so modified, affirmed, without costs and without disbursements. In the event the condition is not complied with, then order reversed, on the law, with costs and disbursements, and defendants-appellants’ motion to dismiss is granted. Plaintiff’s time to serve the complaint is extended until 10 days after payment is made. Special Term denied defendants-appellants’ motion to dismiss, viewing the matter as one in which the parties were charting their own course and placing great emphasis on the fact that plaintiff had theretofore extended the courtesy to said defendants of permitting them further time in which to appear. Plaintiff has clearly submitted an adequate affidavit of merits. However, under the circumstances, while the failure to timely serve a complaint resulted from the complexity of facts, it was an abuse of discretion by Special Term not to condition the granting of relief to plaintiff upon the payment by her counsel of an appropriate sum for their dereliction. Concur — Kupferman, J. P., Sullivan, Ross, Lupiano and Asch, JJ.