Marks v. Levine

45 A.D.2d 715, 355 N.Y.S.2d 810, 1974 N.Y. App. Div. LEXIS 4837

Opinion

Appeal by defendant from so much of an order of the Supreme Court, Nassau County, dated January 15, 1974, as, in granting defendant’s motion to dismiss the action for failure to serve a complaint, pursuant to CPLR 3012 (subd. [b]) included the following condition: "unless the plaintiff serve a Complaint within twenty (20) days after service of a copy of this Order on the attorney for the Plaintiff.” Order reversed insofar as appealed from, thus striking therefrom the above-quoted condition, with $20 costs and disbursements. In the absence of a proposed complaint, an excuse for the default by plaintiffs and an affidavit of merits, and without opposition to defendant’s motion, Special Term erred in the exercise of its sua sponte discretion (Harris v. Hampton Hotel Corp., 36 A D 2d 999; De Stefano v. Nash, 40 A D 2d 1010). Hopkins, Acting P. J., Christ, Brennan, Benjamin and Munder, JJ., concur