DONNELLY v. PEPICELLI


58 N.Y.2d 268 (1983)

Glenn A. Donnelly, Individually and Doing Business as D.I.R.T. of New York, Appellant, v. Justin P. Pepicelli, Respondent.

Court of Appeals of the State of New York.

Decided March 23, 1983.


Attorney(s) appearing for the Case

Andrew S. Fusco for appellants.

Ronald S. Carr for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur in Per Curiam opinion; Judge FUCHSBERG concurs in a concurring memorandum; Judge SIMONS taking no part.


Per Curiam.

A failure timely to serve a complaint as a result of a disagreement between the opposing attorneys with respect to discovery is not law office failure. That being so and there being a sufficient indication of merit and no indication of prejudice to defendant in the motion papers, it was not an abuse of discretion as a matter of law for Special Term to condition dismissal of the action upon plaintiff's service...

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