Stark v. Marine Power & Light Co.

In a negligence action to recover damages for personal injuries, defendant Children’s Aid Society-Goodhue Center, also known as Children’s Aid Society, appeals from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated March 10, 1983, as denied its motion to dismiss the action as against it for failure to serve a complaint on condition that plaintiff serve a complaint within 10 days after service upon him of a copy of the order. Order affirmed, insofar as appealed from, without costs or disbursements, upon condition that plaintiff’s attorney personally pay $750 to appellant within 20 days after service upon him of a copy of the order to be made hereon, with notice of entry; in the event that condition is not complied with, order reversed, insofar as appealed from, as a matter of discretion, with costs, motion granted unconditionally, and action 754 dismissed as against appellant. We deem the excuse offered for failing to serve a complaint in a timely manner inadequate. However, in view of the lack of prejudice to appellant, the potential meritorious nature of the action, and the public policy in favor of resolving cases on the merits we have conditioned the denial of the motion to dismiss upon compliance with appropriate sanctions imposed on plaintiff’s attorney (see Lindo v Evans, 98 AD2d 765). Lazer, J. P., Thompson, Weinstein and Niehoff, JJ., concur.