Donnelly v. Pepicelli

OPINION OF THE COURT

A failure timely to serve a complaint as a result of a disagreement between the opposing attorneys with respect to discovery is not law office failure. That being so and there being a sufficient indication of merit and no indication of prejudice to defendant in the motion papers, it was not an abuse of discretion as a matter of law for Special Term to condition dismissal of the action upon plaintiff’s service of a complaint within 20 days. The case is, therefore, remitted to the Appellate Division, Fourth Department, for its reconsideration of the matter and exercise of…