Opinion
June 28, 1973
Order, Supreme Court, Bronx County, entered on April 26, 1973, denying defendant-appellant's motion to dismiss this action for failure to serve a complaint and to discharge the mechanic's lien filed by plaintiff, unanimously modified, on the law and the facts, to the extent of granting the motion to dismiss unless a complaint is served within 10 days after service upon plaintiffs-respondents by defendant-appellant of a copy of the order entered herein, with notice of entry, and otherwise affirmed, without costs and without disbursements. Service of a summons on appellant's counsel was valid service, since same was accepted by counsel, who, in turn, served a notice of appearance on behalf of appellant. While the notice of appearance was apparently not objected to or rejected, the record discloses a possible misunderstanding between the parties as to the nature and/or scope of the appearance. Under the circumstances plaintiffs should be given one final opportunity to perfect their action by service of a complaint.
Concur — Stevens, P.J., Kupferman, Steuer and Capozzoli, JJ.