| Gazes v Bennett |
| 2010 NY Slip Op 01575 [70 AD3d 579] |
| February 25, 2010 |
| Appellate Division, First Department |
| Ian J. Gazes, Esq., as Trustee in Bankruptcy for the BankruptcyEstate of John Horan, Debtor, Appellant, v John C. Bennett,Respondent. |
—[*1] Housman & Associates, P.C., Tarrytown (Mark E. Housman of counsel), forrespondent.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered December 8,2008, which granted defendant's motion to dismiss the complaint and denied plaintiff's request tomake late service of the summons and complaint, unanimously reversed, on the law, withoutcosts, the motion denied, the complaint reinstated, and defendant directed to accept servicethereof.
Plaintiff brought this malpractice action against defendant in connection with hisrepresentation of the debtor and trustee in a wrongful termination action (see Horan v NewYork Tel. Co., 309 AD2d 642 [2003]). Plaintiff's time to commence this action and serve asummons and complaint expired on September 13, 2007, six months after the dismissal of anearlier action arising out of the same transactions (see CPLR 205 [a]). Commencementwas timely, but attempted service on September 12, 2007 was defective because the mailingcomponent of service was sent to defendant's place of work in an envelope indicating it was froma law firm, an error attributable to the process server. The denial of plaintiff's request thatdefendant be compelled to accept late service of the pleadings was contained in a final order, andis thus appealable as of right (see CPLR 5701 [a] [2]).
A court may "compel the acceptance of a pleading untimely served, upon such terms as maybe just and upon a showing of reasonable excuse for delay" (CPLR 3012 [d]). Plaintiff submitteda reasonable excuse for delay in proper service—namely, the process server'serror—which was attributable to counsel and constituted excusable law office failure(see CPLR 2005).
Plaintiff set forth a meritorious action, and the delay was excusable in light of its brevity andthe absence of any pattern of default; defendant should have been compelled to accept lateservice pursuant to CPLR 3012 (d) (see Nason v Fisher, 309 AD2d 526 [2003]). This isespecially so in the absence of any prejudice to defendant, who was actually andtimely—although not properly—served with the complaint (see Lisojo vPhillip, 188 AD2d 369 [1992]; see also CPLR 2001, 2004), and in the absence ofany indication that plaintiff intended to abandon his claim (see Nolan v Lechner, 60 AD3d 473 [2009]).Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and Abdus-Salaam, JJ. [PriorCase History: 2008 NY Slip Op 33265(U).]