Back v. Berck , 74 A.D.2d 886 ( 1980 )

In a dental malpractice action, defendants appeal from an order of the Supreme Court, Rockland County, dated August 31, 1979, which denied their motion to dismiss the action for failure to serve a timely complaint. Order modified by adding provisions thereto conditioning the denial of the motion upon the payment of a total of $100 by plaintiffs’ counsel to defendants and that if the condition is not complied with then the motion is granted. As so modified, order affirmed, with $50 costs and disbursements payable to defendants. The time for plaintiffs’ counsel to make payment is extended until 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof. The time to serve a complaint is extended until 10 days after payment is made. Under the circumstances, the exercise of discretion in excusing the default in service of a timely complaint and in denying defendants’ motion should have been conditioned upon payment of the aforesaid sum. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.