Opinion
October 5, 1976
In a defamation action, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County, entered December 24, 1975, as, upon reargument, adhered to its original determination, i.e., an order of the same court, entered November 14, 1975, which granted defendant's motion, made pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint. Order reversed insofar as appealed from, in the exercise of discretion and in the interest of justice, without costs or disbursements, on condition that plaintiffs' attorneys personally pay the sum of $100 to defendant within 20 days after entry of the order to be made hereon; in the event such condition is not complied with, order affirmed insofar as appealed from, with $50 costs and disbursements. The attorneys' neglect or alleged inability to locate their client until the defendant's motion papers were served, should not deprive their clients of their day in court. It is proper in such a case to save the action for the client, while imposing upon the attorneys, personally, a penalty for their neglect (see Cichorek v Cosgrove, 47 A.D.2d 883; Moran v Rynar, 39 A.D.2d 718). Cohalan, Acting P.J., Margett, Damiani, Shapiro and Titone, JJ., concur.