Peluso v. Twenty-First Century Restaurant, Inc.

In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Le Vine, J.), dated July 2, 1986, which denied its motion to dismiss the action for failure to timely serve a complaint, on the condition that the plaintiff’s attorneys pay the defendant’s attorney $500 in costs and serve the complaint within 20 days of the date of the order.

Ordered that the order is modified, by deleting the amount "$500.00”, and substituting therefor the amount "$1500.00”. As so modified, the order is affirmed, without costs or disbursements. The time of the plaintiff to serve his complaint and the time of his attorneys to pay the $1,500 in costs is extended to 20 days after service upon them of a copy of this decision and order, with notice of entry.

The court properly exercised its discretion in excusing the plaintiff’s late service of the complaint on the condition that costs be paid. However, we believe the sanction should be increased to $1,500 in view of the almost one-year delay in service. Mangano, J. P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.