Consonant with the spirit and purpose of CPLR 3012 (d), the IAS Court properly excused plaintiff's failure to serve a complaint in response to a demand therefor in the absence of any prejudice to movant (Talley v Montefiore Hosp., 167 A.D.2d 231). The verified complaint satisfies the requirement that an affidavit of merit must be submitted in opposition to a motion to dismiss for failing to answer a demand for a complaint (see, Salch v Paratore, 60 N.Y.2d 851). Further, the court is not precluded, as a matter of law, from exercising its discretion to excuse a default resulting from law office failure (CPLR 2005; see, Rivera v 101 W. 12th St. Garage Corp., 111 A.D.2d 622), which is the excuse proffered by plaintiff.
Concur — Milonas, J.P., Wallach, Asch and Rubin, JJ.