Rascoe v. Clark

65 A.D.2d 876, 410 N.Y.S.2d 392, 1978 N.Y. App. Div. LEXIS 13779

Opinion

Appeal from an order of the Supreme Court at Special Term, entered November 17, 1977 in Albany County, which conditionally dismissed the action against defendant Fasulo unless plaintiff served a complaint upon the attorneys for Fasulo within 10 days. This action was commenced against defendant Fasulo by the service of a summons upon her on September 22, 1975. On December 9, 1975 defendant Fasulo served a notice of appearance and demand for a complaint upon plaintiffs attorney. Since no complaint was received for approximately 20 months, defendant Fasulo moved, pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint. Special Term conditionally dismissed the action unless plaintiff served a complaint on defendant Fasulo’s attorneys within 10 days. On this appeal it is contended by defendant Fasulo that her motion should have been granted unconditionally. Although plaintiff alleges on appeal that her attorney appeared on the motion, the order being appealed from recites that no one appeared in opposition to defendant’s motion. In any event, no papers were submitted in opposition. Plaintiffs failure to offer a satisfactory excuse for the lengthy delay and her failure to submit an affidavit of merits requires a modification of the order on appeal and the unconditional dismissal of the action as against defendant Fasulo (Hanley v Callanan Inds., 60 AD2d 706). Order modified, on the law and the facts, by striking so much thereof as conditionally grants defendant Fasulo’s motion to dismiss and by providing that the motion is granted unconditionally, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Larkin and Herlihy, JJ., concur.