De Stefano v. Nash

40 A.D.2d 1010, 338 N.Y.S.2d 919, 1972 N.Y. App. Div. LEXIS 2995

Opinion

In a negligence action to recover damages for personal injuries, defendant trustees appeal from an order of the Supreme Court, Kings County, dated May 9, 1972, which denied their motion to dismiss the action for failure to serve a complaint, pursuant to CPLR 3012 (subd. [b] )> on condition that plaintiff submit an affidavit of merits and serve a complaint within 30 days after service of a copy of the order with notice of entry. Order reversed, in the exercise of discretion, with $10 costs and disbursements, and motion to dismiss the complaint granted. The summons was served two days before the three-year Statute of Limitations would have barred the action; and the motion to dismiss was made about 10 months after the service of appellants’ notice of appearance demanding service of a complaint. No complaint was served until after the motion to dismiss the complaint was made. In the absence of any showing to excuse the failure to serve a complaint within a reasonable time and in the absence of an affidavit showing that the action has merit, Special Term should have granted the motion to dismiss unconditionally (Kroner v. Flora, 35 A D 2d 835; Bamford v. Kaunitz, 37 A D 2d 682; Powell v. Becker Truck Renting Corp., 20 A D 2d 573). Munder, Acting P. J., Martuscello, Shapiro, Gulotta and Brennan, JJ., concur.