Opinion
November 15, 1990
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
Plaintiff's complaint was dismissed on default for plaintiff's failure to serve the complaint after demand. Subsequently, the court vacated the default on condition that plaintiff pay costs of the motion and serve the complaint within 30 days of order. It is disputed whether the complaint was then timely served. Alleging that it had not received the complaint until approximately 60 days after the date of the conditional order, defendant then moved to dismiss the action. The IAS court granted the motion conditionally, allowing plaintiff one more opportunity to serve the complaint.
This court adheres to liberally excusing nonprejudicial defaults (Shure v. Village of Westhampton Beach, 121 A.D.2d 887). Even if we were to find that plaintiff failed to comply with the first conditional order, under the circumstances presented, plaintiff has demonstrated both a reasonable excuse and a meritorious defense, such that there was no abuse of discretion in permitting plaintiff a further opportunity to serve the defendant.
Concur — Kupferman, J.P., Carro, Ellerin, Wallach and Smith, JJ.