De Pasquale v. H. Lewkowitz, Inc. , 51 A.D.2d 919 ( 1976 )

Order, Supreme Court, New York County, entered October 31, 1975 unanimously modified on the law and in the interests of justice to the extent of granting plaintiffs leave to serve a verified complaint within 10 days after service of a copy of the order to be entered hereon, with notice of entry, on condition that prior to service of the complaint, or simultaneously therewith, plaintiffs pay $40.00 motion costs. Except as so modified, the order appealed from is otherwise affirmed, without costs. In view of the indifferent attitude exhibited by plaintiffs with respect to defendant’s notice of appearance and demand for plaintiffs’ addresses and their failure to respond to defendant’s letter request for the complaint, the denial of defendant’s motion to dismiss this action because of the plaintiffs’ failure to serve their complaint should have been expressly conditioned on their paying the motion costs. Concur—Kupferman, J. P., Murphy, Lupiano, Silverman and Yesawich, JJ.