Catherwood v. American Sterilizer Co. — 132 A.D.2d 939

Majority

p. 939

Elaine Catherwood et al., Respondents, v American Sterilizer Company et al., Defendants, and Linde, a Division of Union Carbide Corp., Appellant.

Order unanimously affirmed without costs. Memorandum: We conclude that plaintiff’s failure to serve the complaint until nine days after it was due was not law office failure under the circumstances of this case (cf., Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904 , 905). Consequently, there being a sufficient indication of merit and no prejudice to defendant, it was not an abuse of discretion for Special Term to deny the motion to dismiss the complaint (see, Donnelly v Pepicelli, 58 NY2d 268 ; Barasch v Micucci, 49

p. 940

NY2d 594 , 600). (Appeal from order of Supreme Court, Erie County, Doyle, J.—dismiss action.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ.

Cases cited

Kel Management Corp. v. Rogers & Wells 64 NY2d 904 N.Y. 1985-02-07 at 905 p. 939
Donnelly v. Pepicelli 58 NY2d 268 N.Y. 1983-03-23 p. 939