Opinion
October 27, 1980
Appeal by defendants from an order of the Supreme Court, Queens County, dated May 8, 1979, which, inter alia, granted plaintiffs' motion for an extension of time within which to serve their complaint. Order affirmed, with $50 costs and disbursements. This is an action by judgment creditors of certain corporations to recover against the principals of those corporations for transfers of corporate assets made without consideration and with the intent to fraudulently defeat collection of the judgments. Summonses were served upon both defendants in early or mid January, 1979, and on January 29, 1979 an attorney served by mail an appearance and a demand for service of a complaint on behalf of both defendants. Service of the complaint was thus due on or before February 21, 1979 (see CPLR 2103, subd [b]; 3012, subd [b]; General Construction Law, § 20). The complaint was not timely served, and on March 1, 1979 defendants' attorney wrote to plaintiffs' counsel demanding a copy of the complaint by return mail and stating that if the complaint were not so forwarded, he would move to dismiss. This letter, extending plaintiffs' time to serve the complaint, was received by their attorney on March 3, 1979. The complaint was forwarded by mail to defendants' attorney three days later on March 6, 1979. Defendants' counsel rejected the complaint and plaintiffs moved, pursuant to CPLR 2004, for an extension of time within which to make service and to compel defendants to accept such service. Special Term granted the motion upon condition that plaintiffs' counsel personally pay $50 costs to defendants. In view of the minuscule delay of three days in serving the complaint after receiving the letter of defendants' attorney demanding service by return mail and in view of the complexity of the issues involved, the court properly exercised its discretion by granting plaintiffs' motion conditionally. Damiani, J.P., Gibbons, Gulotta and Weinstein, JJ., concur.