Skrabalak v. Rock ( 1991 )

— Appeal from that part of an order of the Supreme Court (Fischer, J.), entered July 12, 1990 in Broome County, which denied defendant’s motion to dismiss for failure to timely provide a complaint and extended plaintiffs’ time in which to file said complaint.

Contrary to defendant’s contention, Supreme Court did not abuse its discretion by denying defendant’s motion to dismiss due to plaintiffs’ minimal and nonprejudicial 11-day delay in serving the complaint (see, Lehigh Val. R. R. Co. v North Am. Van Lines, 25 AD2d 923; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3012:12, at 658). In any event, the affidavit and proof submitted by plaintiffs in opposition to defendant’s motion adequately demonstrated the alleged merits of the claim (see, Mufalli v Ford Motor Co., 105 AD2d 642) as well as the fact that the delay in service was excusable (see, Mineroff v Macy’s & Co., 97 AD2d 535).

Mahoney, P. J., Weiss, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.