Fisher v. Tier Oil Co.

40 A.D.2d 930, 338 N.Y.S.2d 223, 1972 N.Y. App. Div. LEXIS 3247

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1972
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered August 16, 1972 in Broome County, which granted plaintiffs leave of 10 days to serve a complaint and which provided, upon compliance, plaintiffs’ default in timely serving the complaint be excused. The instant action was commenced by the service of a summons. Some four months after demanding a complaint appellant moved to dismiss for failure to comply. The motion was adjourned from time to time and six months had expired after the demand by the time the motion was heard. Respondents submitted no papers in opposition. Special Term granted the motion conditioned upon respondent’s failure to serve a complaint within 10 days. The sole issue presented on this appeal is whether appellant’s motion for an order dismissing the action pursuant to CPLR 3012 (subd. [b]) should have been granted unconditionally. After a delay of six months respondents had an obligation to demonstrate their cause of action had merit and also an excuse for the delay. They did neither. In our opinion, the motion should have been granted unconditionally. (Hughes v. Seven-up Bottling Co. of Binghamton, 39 A D 2d 624; Powell v. Becker Truck Renting Corp., 20 A D 2d 573.) Order modified, on the law and the facts, by striking from the decretal paragraph so much thereof as granted a 10-day leave to plaintiffs to serve a complaint and by directing that the action be dismissed as to appellant, and, as so modified, affirmed, without costs. Herlihy, P. J., Staley, Jr., Sweeney, Simons and Kane, JJ., concur.