Opinion
November 19, 1979
In a negligence action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Kings County, dated October 4, 1978, which granted plaintiff's motion for reargument and upon reargument granted his motion to serve a complaint nunc pro tunc. Order affirmed, without costs or disbursements, on the condition that plaintiff pay appellant's counsel $250 within 20 days after service upon plaintiff of a copy of the order to be made herein, together with notice of entry thereof; in the event such condition is not complied with, order reversed, on the law, with $50 costs and disbursements, motion for reargument denied and order dated July 3, 1978, denying plaintiff's motion authorizing the service of a complaint nunc pro tunc is reinstated. The complaint shall be served within 10 days after the condition is complied with. In the circumstances of this case, it was not an abuse of discretion to allow plaintiff to serve a complaint nunc pro tunc. However, in view of the lengthy period of delay which is partly attributable to the plaintiff, it is appropriate to impose the above penalty. O'Connor, J.P., Lazer, Rabin and Gulotta, JJ., concur.