Opinion
July 10, 1987
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Doerr, J.P., Boomer, Green, Pine and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: We conclude that plaintiff's failure to serve the complaint until nine days after it was due was not law office failure under the circumstances of this case (cf., Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904, 905). Consequently, there being a sufficient indication of merit and no prejudice to defendant, it was not an abuse of discretion for Special Term to deny the motion to dismiss the complaint (see, Donnelly v. Pepicelli, 58 N.Y.2d 268; Barasch v. Micucci, 49 N.Y.2d 594, 600).