THEWET v. CLARKE (2007)

Supreme Court, Appellate Division, First Department, New York.

Roberto THEWET, et al., Plaintiffs-Respondents, v. Roland CLARKE, Defendant-Appellant.

Decided: March 27, 2007

TOM, J.P., WILLIAMS, BUCKLEY, GONZALEZ, SWEENY, JJ.

Anita Nissan Yehuda, Roslyn Heights, for appellant. Cascione, Purcigliotti & Galluzzi, P.C., New York (Kelly L. Murtha of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about January 6, 2006, which, to the extent appealed from, denied defendant's cross motion to dismiss the complaint, unanimously affirmed, without costs.

The motion court properly granted defendant's alternative request for extension of time to file a late answer. Although plaintiffs did not serve the summons and complaint within 30 days of entry of the order permitting substituted service via defendant's insurance carrier, plaintiffs did make service within 30 days of noticing entry of that order (see Gallo v. Ventimiglia, 283 A.D.2d 331, 726 N.Y.S.2d 17 [2001] ). Plaintiffs were unaware that the order had been issued because their court-watching service failed to so inform them. As soon as they became aware of that order, some 10 months later, they promptly served it on defendant's insurer with notice of entry, followed shortly thereafter with service of the summons and complaint.

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