Opinion
CA 02-01939
February 7, 2003.
Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered November 13, 2001, which, inter alia, granted plaintiff's cross motion to extend the time in which to serve the complaint.
SUGARMAN LAW FIRM, LLP, SYRACUSE (SANDRA L. HOLIHAN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
JEFFERY G. TOMPKINS, CAMDEN, FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, BURNS, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs to defendants.
Memorandum:
Supreme Court did not abuse its discretion in granting plaintiff's cross motion to extend the time in which to serve the complaint pursuant to CPLR 3012(d) and, in the event plaintiff failed to serve the complaint as directed, in granting defendants' motion to dismiss the action for failure to timely serve the complaint. Plaintiff tendered a sufficient affidavit of merit in support of his cross motion, and the court properly exercised its discretion in the interests of justice in excusing plaintiff's delay resulting from law office failure (see CPLR 2005; cf. Grant v. City of N. Tonawanda, 225 A.D.2d 1089). Although we see no reason to disturb the court's determination, given the length of time that plaintiff's counsel delayed in filing the complaint, we hereby grant defendants costs on this appeal (see CPLR 8107; see also 8108).