Gelch v. Malrich Realty Corp.

47 A.D.2d 644, 364 N.Y.S.2d 16, 1975 N.Y. App. Div. LEXIS 8819

Opinion

In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Kings County, dated May 10, 1974, which conditionally denied its motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action for failure to timely serve a complaint. Order reversed, on the law, with $20 costs and disbursements, and motion granted unconditionally. Plaintiffs failed to serve a complaint for approximately 28 months after a written demand therefor by defendant. Special Term should not have permitted plaintiffs to serve their complaint in the absence of a motion by them to be relieved of their default (Simons v. Sanford Plaza, 44 A D 2d 710; Beckham v. Lefferts Gen. TIosp., 36 A D 2d 726). Gulotta, P. J., Hopkins, Cohalan, Christ and Munder, JJ., concur.