Melfi v. Nash

40 A.D.2d 1017, 339 N.Y.S.2d 119, 1972 N.Y. App. Div. LEXIS 3011

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1972
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, defendants 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, upon condition that an affidavit of merits be submitted and the complaint served •within 30 days after service 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. In the absence of any showing of excuse for the failure to serve a complaint six months after demand therefor and in the absence of an affidavit showing that the action has merit, Special Term should unconditionally have granted the motion to dismiss the action (Schwartz v. National Fire Ins. Co. of Hartford, 25 A D 2d 727; Powell v. Becker Truck Renting Corp., 20 A D 573). Munder, Acting P. J., Martuscello, Shapiro, Gulotta and Brennan, JJ., concur.