Hanley v. Callanan Industries, Inc.

60 A.D.2d 706, 401 N.Y.S.2d 7, 1977 N.Y. App. Div. LEXIS 14726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1977
• Status: Published

Opinion

Appeal from an order of the County Court of Rensselaer County, entered September 24, 1976, which conditionally dismissed the action unless plaintiffs served a complaint within 30 days. The sole issue presented is whether defendant’s motion for an order dismissing the action pursuant to CPLR 3012 (subd [b]) should have been granted unconditionally. On April 8, 1976 plaintiffs commenced their action by serving a summons with notice upon the defendant. On April 15, 1976 the defendant served a notice of appearance and a written demand for a complaint upon plaintiffs’ attorney. After four and one-half months passed without a response, defendant moved to dismiss the action for failure to comply with the demand. Plaintiffs appeared on the motion but submitted no papers in opposition. This court has stated that unless the delay in the service of the complaint is only a few days (Lehigh Val. R. R. Co. v North Amer. Van Lines, 25 AD2d 923), the failure to serve is a dismissable default unless the motion is successfully met by a satisfactory excuse and an affidavit of merits. Neither requirement was met in this case (see Jones v County of Rensselaer, 59 AD2d 982; Johnson v Johnson, 45 AD2d 899; Fisher v Tier Oil Co., 40 AD2d ). Order reversed, on the law and the facts, without costs, motion granted and action dismissed. Koreman, P. J., Greenblott, Sweeney, Kane and Mahoney, JJ., concur.