Elaine Catherwood et al., Respondents, v. American Sterilizer Company et al., Defendants, and Linde, a Division of Union Carbide Corp., Appellant

Elaine Catherwood et al., Respondents, v American Sterilizer Company et al., Defendants, and Linde, a Division of Union Carbide Corp., Appellant. [MAJORITY] Order unanimously affirmed without costs. Memorandum: We conclude that plaintiff’s failure to serve the complaint until nine days after it was due was not law office failure under the circumstances of this case (cf., Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904, 905). Consequently, there being a sufficient indication of merit and no prejudice to defendant, it was not an abuse of discretion for Special Term to deny the motion to dismiss the complaint (see, Donnelly v Pepicelli, 58 NY2d 268; Barasch v Micucci, 49 NY2d 594, 600). (Appeal from order of Supreme Court, Erie County, Doyle, J.—dismiss action.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ.