Beermont Corp. v. Yager , 34 A.D.2d 589 ( 1970 )

Reynolds, J.

Appeal from an order of the County Court, Greene County, granting respondent’s motion pursuant to CPLR 3216 to dismiss appellant’s complaint for failure to prosecute. While ordinarily respondent’s failure to serve by registered or certified mail (CPLR 3216, subd. [b], par. [3]) his demand to file a note of issue might require a denial of the instant motion (see Leichter v. Murphy, 32 A D 2d 811), we find no merit in this contention under the circumstances present in this ease. Undeniably appellant received the demand and was in no way prejudiced as to a substantial right by service by ordinary mail, and thus the irregularity should be disregarded (CPLR 2001). It is also significant that this issue was not even presented to the trial court (see Baker v. Topping, 15 A D 2d 193, 196, mot. for Iv. to app. den. 11 N Y 2d 644). Furthermore, even assuming appellant’s affidavit in opposition reveals a meritorious cause of action it fails to reveal a justifiable excuse for the delay as required by CPLR 3216 (subd. [b], par. [3]; subd. [e]) (e.g., Abare v. Moore, 27 A D 2d 147). Here the sole justification for the delay is appellant’s attorney’s busy schedule during the 45-day period following respondent’s demand. It is well settled, however, that “ excuses for avoidable delay are insufficient which merely lay the delay at the door of plaintiff himself, his lawyer of record, trial counsel, other associated counsel, or employees of any of the lawyers ” (Sortino• v. Fisher, 20 A D 2d 25, 29). In addition the nearly five years delay between respondent’s demand for the bill of particulars and the appellants compliance therewith could be considered by the court (Practice Commentary by Professor David W. Siegel, McKinney’s Cons. Laws of N. Y., Book 7'B, CPLR 3216, C3216:25, p. 933). Accordingly, the court properly exercised its discretion (Salvaggio v. California Packing Co., 12 A D 2d 557) and its determination should be affirmed. Order affirmed, with costs. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Reynolds, J.