Opinion
March 1, 1985
Appeal from the Supreme Court, Jefferson County, McLaughlin, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Green and Schnepp, JJ.
Order, insofar as it denied plaintiff's motion to amend the title to name him in his representative capacity, unanimously reversed and motion granted; motion to substitute Beverly J. McCargar granted; order and judgment dismissing complaint unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Jefferson County, for further proceedings, in accordance with the following memorandum: Law office failure is the only excuse offered by plaintiff for neglecting to serve the complaint for some nine months after demand therefor was made. While the order appealed from was unquestionably correct when made ( Barasch v Micucci, 49 N.Y.2d 594), the subsequent enactment of CPLR 2005 permits the court to exercise its discretion in the interest of justice to excuse delay resulting from law office failure. Since the court did not have the opportunity to exercise its discretion, we reverse and remit so that it may now do so.
We note, however, that the statutory enactment, which was intended to relieve the oftentimes harsh results which flowed from Barasch v. Micucci ( 49 N.Y.2d 594, supra), does not give a defaulting party carte blanche to be excused from law office failure, nor does it relieve that party from explaining the reasons for its default. The basic tenet of Sortino v. Fisher ( 20 A.D.2d 25), requiring the defaulting party to give a reasonable excuse for its delay and establishing the merit of its case, is still viable ( Luksic v. Killmer, 100 A.D.2d 864; Barnard v. Tops Friendly Mkts., 99 A.D.2d 654).