concurs in the result, with the following memorandum: While I concur in the result, I cannot agree that an “affidavit of service by mail is usually sufficient to create a presumption’that a document was mailed”, or that, in this case, the need for a hearing as to whether the complaint was mailed is obviated because of inconsistent affidavits from the person who allegedly mailed the complaint. It is true that this court has held that a denial of receipt of a letter “is insufficient to rebut the inference of proper mailing *468which may be drawn from * * * [the sender’s] affidavit of service” (De Forte v Doctors Hosp., 66 AD2d 792). However, that decision should be overruled, as argued in my dissent in the case of Engel v Lichterman (95 AD2d 536). De Forte is based on a misapprehension of the rule set down in Trusts & Guar. Co. v Barnhardt (270 NY 350), and is contrary to numerous cases which require a hearing or trial to resolve a question concerning a disputed mailing (see, e.g., Capra v Lumbermens Mut. Cas. Co., 31 NY2d 760; LeFevre v Cole, 83 AD2d 992; Empire Nat. Bank v Judal Const., 61 AD2d 789; Caprino v Nationwide Mut. Ins. Co., 34 AD2d 522; Noftell v Gair Realty Corp., 32 AD2d 839; De Feo v Merchant, 115 Misc 2d 286; Teichberg v Blair & Co., 63 Misc 2d 1073; cf. Nassau Ins. Co. v Murray, 46 NY2d 828, 830; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238). To the views expressed in the dissent in Engel v Lichterman (supra), I would like only to add that the fact that the document purportedly mailed in this case was the complaint underscores the need, generally, to have a hearing when the mailing is disputed. It can hardly be questioned that if a summons and complaint are served together, either by delivery and mailing or by substituted service (CPLR 308, subds 2, 4), and where the defendant maintains in a sworn affidavit that he never received the summons and complaint in the mail, then a hearing is required to determine whether those papers were, in fact, mailed notwithstanding the existence of an affidavit of service (LeFevre v Cole, 83 AD2d 992, supra; Empire Nat. Bank v Judal Const., 61 AD2d 789, supra). There is no reason to hold differently in the instance where the complaint is sent by mail after the summons is served. The need to prevent “sewer service” and unwarranted default judgments is the same in both situations. The affidavit of service by mail of the complaint in this case is dated August 28,1975. In it, the affiant states that she mailed the complaint to representatives for both the transit authority and the City of New York on that date. However, in response to the motion for reargument brought by the city, the affiant, a former secretary of the attorney for plaintiffs, candidly admitted that the affidavit of service was inaccurate “as although both envelopes were prepared it was some period later when I discovered that the envelope intended for [the representative of the transit authority] had erroneously not been mailed. The envelope addressed to [the representative of the city], containing the complaint in the instant matter was in fact personally mailed by deponent on August 28, 1975”. The majority maintains that the fact that it is now admitted that a complaint to the transit authority was not mailed means that, as a matter of law, it must be concluded that the complaint was not mailed to the city. Whether or not the complaint was mailed to the city is a factual question. That one piece of mail was mishandled does not necessarily mean that another was as well. While the mishandling of the complaint to the transit authority would certainly be a factor to be weighed in a factual determination, such should not preclude plaintiffs from having an opportunity of proving that the complaint was mailed to the city (cf. Caprino v Nationwide Mut. Ins. Co., 34 AD2d 522, supra). The admitted defect in the original affidavit of service by mail is a mere irregularity, if, in fact, the complaint was properly mailed. The latter issue is the crucial one, which would normally require a hearing (see Mariano v Steinberg, 87 AD2d 606; Mrwik v Mrwik, 49 AD2d 750). Nevertheless, I agree with my colleagues that in this case a hearing is not required. Even assuming the complaint was mailed, plaintiffs’ action against the city should be dismissed as abandoned. Plaintiffs were required “to take proceedings for the entry of judgment within one year” after the city allegedly defaulted in answering the complaint or face dismissal of the action absent “sufficient cause” to excuse the delay (CPLR 3215, subd [c]; Baldwin v St. Clare’s Hosp., 63 AD2d 761; Shepard v St. Agnes Hosp., 86 AD2d 628). The excuse for not seeking a default judgment, despite the passing of *469several years, was that plaintiffs’ attorney had misplaced the legal file. Such constitutes law office failure which, under the circumstances presented here, is not a sufficient reason to avoid dismissal (cf. L 1983, ch 318).