Pinkham v. Siemen's Analytical X-Ray Instruments, Inc.

Order unanimously affirmed without costs. Memorandum: It was not an improvident exercise of discretion for the court to deny defendant’s motion to dismiss plaintiff’s action pursuant to CPLR 3012 (b) and to grant plaintiff’s cross motion permitting late service of the complaint. The court’s decision to excuse plaintiff’s delay caused by law office failure was within its sound discretion (see, Special Prods. Mfg. v Douglass, 159 AD2d 847, 848), and plaintiff’s submissions in response to defendant’s motion were sufficient to show merit (see, Weis v Weis, 138 AD2d 968, 969; Tonello v Carborundum Co., 91 AD2d 1169, 1170, affd 59 NY2d 720, rearg denied 60 NY2d 587). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Complaint.) Present — Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.