Opinion
June 13, 1974
Appeal from order, Supreme Court, New York County, entered March 29, 1973, unanimously dismissed as untimely, without costs and without disbursements. It is not controverted that a copy of the order with notice of entry was served on plaintiff's attorney on April 5, 1973, and that the appeal was belatedly taken by notice dated October 26, 1973. Order, Supreme Court, New York County, entered September 13, 1973, unanimously modified, on the law, the facts and in the exercise of discretion, to provide that plaintiff may comply with the prior order of the Supreme Court, dated March 28, 1973, within 10 days after service upon him by respondents of a copy of the order to be settled hereon, with notice of entry, conditioned upon payment by plaintiff to defendant at the office of defendants' attorney within such period, of the sum of $350 costs, and, as so modified, affirmed. Respondents shall recover of appellant $40 costs and disbursements of this appeal. Plaintiff has failed to demonstrate an adequate excuse for failure to supply the items required pursuant to order of the Supreme Court dated March 28, 1973. However, the record warrants affording plaintiff one further opportunity to avoid dismissal of the complaint.
Concur — Markewich, J.P., Kupferman, Lupiano, Steuer and Capozzoli, JJ.